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HISTORICAL  SKETCH 


OF  THE 


Mining  Law  in  California 


BY 


JOHN   F.    DAVIS 


Los  Angeles,  Gal, 

COMMERCIAL  PRINTING  HOUSE 

1902 


[Reprinted,  by  permission  of  the  publishers, 

from  "History  of  the  Bench  and  Bar  of  California11 

published  by  the  Commercial  Printing  House, 

Los  Angeles,  Cal.,  1901.] 


HISTORICAL  SKETCH  OF  THE 
MINING  LAW  IN  CALIFORNIA 


One  of  the  most  interesting  chapters  in  Pliny,  who  wrote 
his  Natural  History  shortly  after  the  time  of  Christ,  is  that 
in  which  he  describes  the  different  methods  of  mining  opera- 
tions in  vogue  in  his  time. 

"Gold  is  found  in  our  part  of  the  world,"  says  this  classi- 
cal author,  "not  to  mention  the  gold  extracted  from  the  earth 
in  India  by  the  ants,  and  in  Scythia  by  the  griffins.  Among 
us  it  is  procured  in  three  different  ways :  the  first  of  which  is 
in  the  shape  of  dust,  found  in  running  streams,  the  Tagus  in 
Spain,  for  instance,  the  Padus  in  Italy,  the  Hebrus  in  Thracia, 
the  Pactolus  in  Asia,  and  the  Ganges  in  India.  Indeed,  there 
is  no  gold  found  in  a  more  perfect  state  than  this,  thoroughly 
polished  as  it  is  by  the  continual  attrition  of  the  current. 

"A  second  mode  of  obtaining  gold  is  by  sinking  shafts 
or  seeking  it  among  the  debris  of  the  mountains,  both  of 
which  methods  it  will  be  well  to  describe..  The  persons  in 
search  of  gold  in  the  first  place  remove  the  'segutilum,'  such 
being  the  name  of  the  earth  which  gives  indication  of  the 
presence  of  gold.  This  done,  a  bed  is  made,  the  sand  of  which 
is  washed,  and  according  to  the  residue  found  after  washing, 
a  conjecture  is  formed  as  to  the  richness  of  the  vein.  Some- 
times, indeed,  gold  is  found  at  once  in  the  surface  earth,  a 
success,  however,  but  rarely  experienced.  Recently,  for  in- 
stance in  the  reign  of  Nero,  a  vein  was  discovered  in  Dal- 

103571 


6  History  of  the  Bench  and  Bar  of  California. 

matia,  which  yielded  daily  as  much  as  fifty  pound  weight  of 
gold.  The  gold  that  is  thus  found  in  the  surface  crust  is 
known  as  'talutium,'  in  cases  where  there  is  auriferous  earth 
beneath.  The  mountains  of  Spain,  in  other  respects  arid  and 
sterile,  and  productive  of  nothing  whatever,  are  thus  con- 
strained by  man  to  be  fertile,  in  supplying  him  with  this  pre- 
cious commodity. 

"The  gold  that  is  extracted  from  shafts  is  known  by  some 
persons  as  'canalicium,'  and  by  others  'canaliense.'  It  is 
found  adhering  to  the  gritty  crust  of  marble,  and  altogether 
different  from  the  form  in  which  it  sparkles  in  the  sapphirus 
of  the  East,  and  in  the  stone  of  Thebais  and  other  gems,  it 
is  seen  interlaced  with  the  molecules  of  the  marble.  The 
channels  of  these  veins  are  found  running  in  various  direc- 
tions along  the  sides  of  the  shafts,  and  hence  the  name  of  the 
gold  they  yield,  'canalicium.'  In  these  shafts,  too,  the  super- 
incumbent earth  is  kept  from  falling  in  by  means  of  wooden 
pillars.  The  substance  that  is  extracted  is  first  broken  up  and 
then  washed,  after  which  it  is  subjected  to  the  action  of  fire 
and  ground  to  a  fine  powder.  This  powder  is  known  as 
'apitascudes,'  while  the  silver  which  becomes  disengaged  in 
the  furnace  has  the  name  of  'sudor'  given  to  it.  The  im- 
purities that  escape  by  the  chimney,  as  in  the  case  of  all 
other  metals,  are  known  by  the  name  of  'scoria.'  In  the 
case  of  gold,  this  scoria  is  broken  up  a  second  time  and  melted 
over  again.  The  crucibles  used  for  this  purpose  are  made 
of  'tasconium,'  a  white  earth  similar  to  potter's  clay  in  ap- 
pearance, there  being  no  other  substance  capable  of  with- 
standing the  strong  current  of  air,  the  action  of  the  fire,  and 
the  intense  heat  of  the  melted  metal. 

"The  third  method  of  obtaining  gold  surpasses  the  labors 
of  the  giants  even.  By  the  aid  of  galleries  driven  to  a  long 
distance,  mountains  are  excavated  by  the  light  of  torches, 
the  duration  of  which  forms  the  set  times  for  work,  the 
workmen  never  seeing  the  light  of  day  for  many  months  to- 
gether. These  mines  are  known  as  'arrugiae,'  and  not  un- 
frequently  the  clefts  are  formed  on  a  sudden,  the  earth  sinks 
in,  and  the  workmen  are  crushed  beneath;  so  that  it  would 


Historical  Sketch  of  the  Mining  Law  in  California.  7 

really  appear  less  rash  to  go  in  search  of  pearls  and  purples 
at  the  bottom  of  the  sea,  so  much  more  dangerous  to  our- 
selves have  we  made  the  earth  than  the  water.  Hence  it 
is  that  in  this  kind  of  mining,  arches  are  left  at  frequent  in- 
tervals for  the  purpose  of  supporting  the  weight  of  the  moun- 
tain above.  In  mining  either  by  shaft  or  by  gallery,  barriers 
of  silex  are  met  with,  which  have  to  be  driven  asunder  by  the 
aid  of  fire  and  vinegar,  or  more  frequently,  as  this  method 
fills  the  galleries  with  suffocating  vapors  and  smoke,  to  be 
broken  to  pieces  with  bruising  machines  shod  with  pieces 
of  iron  weighing  one  hundred  and  fifty  pounds;  which  done, 
the  fragments  are  carried  out  on  the  men's  shoulders,  night 
and  day,  each  man  passing  them  on  to  his  neighbor  in  the 
dark,  it  being  only  those  at  the  pit's  mouth  that  ever  see  light. 
In  cases  where  the  bed  of  silex  appears  too  thick  to  admit 
of  being  penetrated,  the  miner  traces  along  the  sides  of  it, 
and  so  turns.  And  yet,  after  all,  the  labor  entailed  by  this 
silex  is  looked  upon  as  comparatively  easy,  there  being  an 
earth — a  kind  of  potter's  clay  mixed  with  gravel — 'gangadia' 
by  name,  which  is  almost  impossible  to  overcome.  This 
earth  has  to  be  attacked  with  iron  wedges  and  hammers,  like 
those  previously  mentioned,  and  it  is  generally  considered 
that  there  is  nothing  more  stubborn  in  existence — except, 
indeed,  the  greed  for  gold,  which  is  the  most  stubborn  of  all 
things. 

"When  these  operations  are  completed,  beginning  at  the 
last,  they  cut  away  the  wooden  pillars  at  the  point  where 
they  support  the  roof.  The  coming  downfall  gives  warning, 
which  is  instantly  perceived  by  the  sentinel,  and  by  him  only, 
who  is  set  to  watch  upon  a  peak  of  the  same  mountain.  By 
voice  as  well  as  by  signals,  he  orders  the  workmen  to  be  im- 
mediately removed  from  their  labors,  and  at  the  same  mo- 
ment takes  flight  himself.  The  mountain,  rent  to  pieces, 
is  cleft  asunder,  hurling  its  debris  to  a  distance  with  a  crash 
which  it  is  impossible  for  the  'human  imagination  to  con- 
ceive; and  from  the  midst  of  a  cloud  of  dust,  of  a  density 
quite  incredible,  the  victorious  miners  gaze  upon  this  down- 
fall of  nature.  Nor  yet  even  then  are  they  sure  of  gold,  nor, 


8  History  of  the  Bench  and  Bar  of  California. 

indeed,  were  they  by  any  means  certain  that  there  was  any 
to  be  found  when  they  first  began  to  excavate,  it  being  quite 
sufficient,  as  an  inducement  to  undergo  such  perils  and  to 
incur  such  vast  expense,  to  entertain  the  hope  that  they  will 
obtain  what  they  so  eagerly  desire. 

"Another  labor,  too,  quite  equal  to  this,  and  one  which 
entails  even  greater  expense,  is  that  of  bringing  rivers  from 
the  more  elevated  mountain  heights,  a  distance,  in  many 
instances,  of  one  hundred  miles,  perhaps,  for  the  purpose  of 
washing  the  debris.  The  channels  thus  formed  are  called 
'corrugi'  from  our  word  'corrivatio,'  I  suppose;  and  even 
when  these  are  once  made  they  entail  a  thousand  fresh 
labors.  The  fall,  for  instance,  must  be  steep,  that  the  water 
may  be  precipitated,  so  to  say,  rather  than  flow;  and  it  is  in 
this  manner  that  it  is  brought  from  the  most  elevated  points. 
Then,  too,  the  valleys  and  crevasses  have  to  be  united  by  the 
aid  of  aqueducts,  and  in  another  place  impassable  rocks  have 
to  be  hewn  away  and  forced  to  make  room  for  hollowed 
troughs  of  wood,  the  persons  hewing  them  hanging  sus- 
pended all  the  time  with  ropes,  so  that  to  a  spectator  who 
views  the  operations  from  a  distance,  the  workmen  have  all 
the  appearance,  not  so  much  of  wild  beasts  as  of  birds  upon 
the  wing.  Hanging  thus  suspended  in  most  instances,  they 
take  the  levels,  and  trace  with  lines  the  course  the  water  is 
to  take;  and  thus,  where  there  is  no  room,  even  for  man  to 
plant  a  footstep,  are  rivers  traced  out  by  the  hand  of  man. 

"The  water,  too,  is  considered  in  an  unfit  state  for  wash- 
ing if  the  current  of  the  river  carries  any  mud  along  with  it. 
The  kind  of  earth  that  yields  this  mud  is  known  as  'wrium/ 
and  hence  it  is  that  in  tracing  out  these  channels,  they  carry 
the  water  over  beds  of  silex  or  pebbles,  and  carefully  avoid 
this  wrium.  When  they  have  reached  the  head  of  the  fall, 
at  the  very  brow  of  the  mountain,  reservoirs  are  hollowed  out 
a  couple  of  hundred  feet  in  length  and  breadth  and  some  ten 
feet  in  depth.  In  the  reservoirs  there  are  generally  five 
sluices  left,  about  three  feet  square;  so  that  the  moment  the 
reservoir  is  filled,  the  flood  gates  are  struck  away  and  the 
torrent  bursts  forth  with  such  a  degree  of  violence  as  to  roll 


Historical  Sketch  of -the  Mining  Law  in  California.  9 

onward  any  fragments  of  rock  which  may  obstruct  its  pas- 
sage. 

"When  they  have  reached  the  level  ground,  too,  there  is 
still  another  labor  that  awaits  them.  Trenches — known  as 
'agogroe' — have  to  be  dug  for  the  passage  of  water;  and  these, 
at  regular  intervals,  have  a  layer  of  ulex  placed  at  the  bot- 
tom. 

"This  ulex  is  a  plant  like  rosemary  in  appearance,  rough 
and  prickly,  and  well  adapted  for  arresting  any  pieces  of 
gold  that  may  be  carried  along.  The  sides,  too,  are  closed  in 
with  planks,  and  are  supported  by  arches  when  carried  over 
steep  and  precipitous  spots.  The  earth  carried  onward  in  the 
stream,  arrives  at  the  sea  at  last,  and  thus  is  the  shattered 
mountain  washed  away — causes  which  have  greatly  tended 
to  extend  the  shores  of  Spain  by  these  encroachments  upon 
the  deep.  It  is  also  by  the  agency  of  canals  of  this  descrip- 
tion that  the  material,  excavated  at  the  cost  of  such  immense 
labor  by  the  process  previously  described,  is  washed  and 
carried  away,  for  otherwise  the  shafts  would  soon  be  choked 
up  by  it. 

"The  gold  found  by  excavating  with  galleries  does  not 
require  to  be  melted,  but  is  pure  gold  at  once.  In  these 
excavations,  too,  it  is  found  in  lumps,  as  also  in  the  shafts 
which  are  sunk,  sometimes  exceeding  ten  pounds  even.  The 
names  given  these  lumps  are  'palagae,'  and  palacurnae/  while 
the  gold  found  in  small  grains  is  known  as  'baluce.'  The 
ulex  that  is  used  for  the  above  purpose  is  dried  and  burnt, 
after  which  the  ashes  of  it  are  washed  upon  a  bed  of  grassy 
turf,  in  order  that  the  gold  may  be  deposited  thereupon." 

The  glimpse  given  us  by  this  chapter  makes  all  the  keener 
our  regret  that  the  works  of  Theophrastus  and  Philo  on 
metals  and  that  of  Strabo  on  machines  and  methods  of  part- 
ing metals,  are  unfortunately  lost  forever.  Had  the  library 
at  Alexandria  not  been  burned,  who  shall  say  that  we  might 
not  have  found  for  our  legal  doctrine  of  the  "extralateral 
right"  in  quartz  mining  some  more  ancient  prototype  than  the 
earlier  mining  codes  of  Prussia  or  the  customs  of  the  lead 
mines  of  Derbyshire? 


io  History  of  the  Bench  and  Bar  of  California. 

DISCOVERY  OF   GOLD   IN   CALIFORNIA. 

On  the  4th  day  of  May,  1846,  Thomas  O.  Larkin,  United 
States  consul  at  Monterey  in  an  official  letter  to  James  Buch- 
anan, then  secretary  of  state,  wrote  as  follows :  "There  is  no 
doubt  but  that  gold,  silver,  quicksilver,  copper,  lead,  sulphur, 
and  coal  mines  are  to  be  found  all  over  California,  and  it  is 
equally  doubtful  whether,  under  their  present  owners,  they 
will  be  worked."  On  the  /th  of  July,  1846,  sixty-four  days 
later,  Commodore  Sloat  raised  the  American  flag  at  Mon- 
terey. 

James  W.  Marshall  made  the  discovery  of  gold  in  the  race 
of  the  sawmill  at  Coloma  in  the  latter  part  of  January,  1848. 
Thereupon  took  place  an  incident  of  history  which  demon- 
strated that  Jason  and  his  companions  were  not  the  only 
Argonauts  who  ever  made  a  voyage  to  unknown  shores  in 
search  of  the  golden  fleece.  The  first  news  of  the  discovery 
almost  depopulated  the  towns  and  ranches  of  California  and 
even  affected  the  discipline  of  the  small  army  of  occupation. 
The  first  winter  brought  thousands  of  Oregonians,  Mexi- 
cans, Kanakas  and  Chilenos.  The  extraordinary  reports 
that  reached  the  East  were  at  first  disbelieved,  but  when  the 
private  letters  of  army  officers  and  men  in  authority  were 
published  an  indescribable  gold  fever  took  possession  of  the 
nation  east  of  the  Alleghanies.  All  the  energetic  and  daring, 
all  the  physically  sound  of  all  ages,  seemed  bent  on  reaching 
the  new  El  Dorado.  The  old  Gothic  instinct  of  invasion  seemed 
to  survive  and  thrill  in  the  fibre  of  our  people,  and  the 
camps  and  gulches  and  mines  of  California  witnessed  a  social 
and  political  phenomenon  unique  in  the  history  of  the  world, 
the  spirit  and  romance  of  which  have  been  immortalized  in 
the  pages  of  Bret  Harte.  Before  1850  the  population  of 
California  had  risen  from  15,000,  as  it  was  in  1847,  to  100,- 
ooo,  and  the  average  annual  increase  for  six  years  thereafter 
was  50,000. 

A   COMMUNITY   WITHOUT   CIVIL   LAW. 

At  the  time  of  Marshall's  discovery,  the  United  States  was 
still  at  war  with  Mexico,  its  sovereignty  over  the  soil  of  Cali- 


Historical  Sketch  of  the  Mining  Law  in  California.          1 1 

fornia  not  yet  recognized  by  the  latter.  The  treaty  of  Guada- 
lupe  Hidalgo  was  not  concluded  till  February  2nd,  the  rati- 
fied copies  thereof  not  exchanged  at  Queretaro  till  May  3Oth, 
and  the  treaty  not  proclaimed  till  July  4th,  1848. 

On  the  1 2th  of  February,  1848,  ten  days  after  the  signing 
of  the  treaty  of  peace,  and  about  three  weeks  after  the  dis- 
covery of  gold  at  Coloma,  Colonel  Mason  did  the  pioneers 
a  signal  service  by  issuing  as  Governor  the  proclamation 
concerning  the  mines,  which  at  the  time  was  taken  as  finality 
and  certainty  as  to  the  status  of  mining  titles  in  their  inter- 
national aspect:  "From  and  after  this  date,  the  Mexican 
laws  and  customs  now  prevailing  in  California,  relative  to  • 
the  denouncement  of  mines,  are  hereby  abolished."  Al- 
though, as  the  law  was  fourteen  years  afterwards  expounded 
by  the  United  States  Supreme  Court  (U.  S.  vs.  Castellero, 
2  Black,  18-371),  the  act  was  unnecessary  as  a  precautionary 
measure,  still  the  practical  result  of  the  timeliness  of  the  pro- 
clamation was  to  prevent  attempts  to  found  private  titles 
to  the  new  discoveries  of  gold  on  any  customs  or  laws  of 
Mexico. 

Meantime,  and,  in  fact,  until  her  admission  into  the  Union 
as  a  State,  California  was  governed  by  military  authorities 
(Cross  vs.  Harrison,  16  How.  U.  S.  191).  Except  to  provide 
for  the  delivering  and  taking  of  mails  at  certain  points  on  the 
Coast,  no  federal  act  was  passed  with  reference  to  California 
in  any  relation;  in  no  act  of  Congress  was  California  even 
mentioned  after  its  annexation,  until  the  Act  of  March  3rd, 
1849,  extending  the  revenue  laws  of  the  United  States  "over 
the  territory  and  waters  of  upper  California,  and  to  create 
certain  collection  districts  therein."  Though  in  this  act  inci- 
dentally the  new  acquisition  is  called  a  "territory,"  no  act  of 
Congress  was  ever  passed  erecting  a  territorial  form  of  gov- 
ernment in  California.  The  Act  of  March  3rd,  1849,  not  only 
did  not  extend  the  general  laws  of  the  United  States  over 
California,  but  did  not  even  create  a  local  tribunal  for  its  en- 
forcement, but  provided  that  the  District  Court  of  Louisiana 
and  the  Supreme  Court  of  Oregon  should  be  courts  of 
original  jurisdiction  to  take  cognizance  of  all  violations  of  its 


12  History  of  the  Bench  and  Bar  of  California. 

provisions.  Not  even  the  Act  of  the  9th  of  September,  1850, 
admitting  California  into  the  Union,  extended  the  general 
laws  of  the  United  States  over  the  State  by  express  pro- 
vision. Not  until  the  Act  of  September  28th,  1850,  establish- 
ing a  District  Court  in  the  State,  was  it  enacted  by  Congress 
"that  all  the  laws  of  the  United  States  which  are  not  locally 
inapplicable  shall  have  the  same  force  and  effect  within  the 
said  State  of  California  as  elsewhere  within  the  United 
States." 

FREE  MINING. 

Though  no  general  federal  laws  were  extended  by  Con- 
gress over  the  late  acqusitions  from  Mexico*  for  more 
than  two  years  after  the  end  of  the  war,  the  paramount  title 
to  the  public  lands  had  vested  in  the  federal  government 
by  virtue  of  the  provisions  of  the  treaty  of  peace,  and  the 
public  land  itself  had  become  part  of  the  public  domain  of 
the  United  States.  (The  Supreme  Court  of  California  did 
afterward,  when  first  organized,  in  Hicks  vs.  Bell,  3  Cal.,  219, 
attempt  by  certain  obiter  dicta  to  put  forth  the  doctrine  of  the 
paramount  title  being  in  the  State  of  California,  but  this 
attempt  at  judicial  legislation  was  soon  after  abandoned  and 
reversed.)  The  army  of  occupation,  however,  offered  no 
opposition  to  the  invading  army  of  prospectors.  The  miners 
were  in  1849  twenty  years  ahead  of  the  railroad  and  the  elec- 
tric telegraph,  and  the  telephone  had  not  yet  been  invented. 
In  the  parlance  of  the  times,  the  prospectors  "had  the  drop  on 
the  army."  In  Colonel  Mason's  unique  report  on  the  situa- 
tion which  confronted  him,  discretion  waits  upon  valor.  "The 
entire  gold  district,"  he  wrote,  "with  few  exceptions  of  grants 
made  some  years  ago  by  the  Mexican  authorities,  is  on  land 
belonging  to  the  United  States.  It  was  a  matter  of  serious 
reflection  with  me  how  I  could  secure  to  the  government 
certain  rents  or  fees  for  the  privilege  of  procuring  this  gold; 
but  upon  considering  the  large  extent  of  the  country,  the 
character  of  the  people  engaged,  and  the  small  scattered 
force  at  my  command,  I  am  resolved  not  to  interfere,  but  per- 
mit all  to  work  freely."  It  is  not  recorded  whether  the 
resolute  Colonel  was  conscious  of  the  humor  of  his  resolution. 


Historical  Sketch  of  the  Mining  Law  in  California.          1 3 

"Persons  who  have  not  given  this  subject  special  atten- 
tion," said  Senator  Stewart  of  Nevada,  addressing  the  United 
States  Senate  in  support  of  the  Bill  of  1866,  "can  hardly 
realize  the  wonderful  results  of  this  system  of  free  mining. 
The  incentive  to  the  pioneer  held  out  by  the  reward  of  a  gold 
or  silver  mine,  if  he  can  find  one,  is  magical  upon  the  san- 
guine temperament  of  the  prospector.  For  near  a  quarter 
of  a  century  a  race  of  men,  constituting  a  majority  by  far  of 
all  the  miners  of  the  West,  patient  of  toil,  hopeful  of  success, 
deprived  of  the  associations  of  home  and  family,  have  de- 
voted themselves,  with  untiring  energy,  to  sinking  deep 
shafts,  running  tunnels  thousands  of  feet  in  solid  granite, 
traversing  deserts,  climbing  mountains,  and  enduring  every 
conceivable  hardship  and  privation,  exploring  for  mines,  all 
founded  upon  the  idea  that  no  change  would  be  made  in  this 
system  that  would  deprive  them  of  their  hard-earned  treas- 
ure. Some  of  these  have  found  valuable  mines,  and  a  sure 
prospect  of  wealth  and  comfort  when  the  appliances  of 
capital  and  machinery  shall  be  brought  to  their  aid.  Others 
have  received  no  compensation  but  anticipation — no  reward 
but  hope.  .  ,>-:.;  I  assert,  and  no*  one  familiar  with  the 
subject  will  question  the  fact,  that  the  sand  plains,  alkaline 
deserts,  and  dreary  monuments  of  rock  and  sagebrush  of  the 
great  interior,  would  have  been  as  worthless  today  as  when 
they  were  marked  by  geographers  as  the  Great  American 
Desert,  but  for  this  system  of  free  mining  fostered  by  our  own 
neglect,  and  matured  and  perfected  by  our  generous  in- 
action." 

CALIFORNIA  COMMON  LAW  OF  MINES. 

The  prospectors  and  miners,  were,  then,  at  the  start, 
simply  trespassers  upon  the  public  lands  as  against  the  gov- 
ernment of  the  United  States,  with  no  laws  to  guide,  restrain 
or  protect  them,  and  with  nothing  to  fear  from,  the  military 
authorities.  They  were  equal  to  the  occasion.  "Finding 
themselves  far  from  the  legal  traditions  and  restraints  of  the 
settled  East,"  says  the  report  of  the  Public  Lands  Commis- 
sion of  1880,  "in  a  pathless  wilderness,  under  the  feverish 


14  History  of  the  Bench  and  Bar  of  California. 

excitement  of  an  industry  as  swift  and  full  of  chance  as  the 
throwing  of  dice,  the  adventurers  of  1849  spontaneously  in- 
stituted neighborhood  or  district  codes  of  regulations,  which 
were  simply  meant  to  define  and  protect  a  brief  possessory 
ownership.  The  ravines  and  river  bars  which  held  the  placer 
gold  were  valueless  for  settlement  or  home-making,  but  were 
splendid  stakes  to  hold  for  a  few  short  seasons  and  gamble 
with  nature  for  wealth  or  ruin. 

"In  the  absence  of  State  and  Federal  laws  competent  to 
meet  the  novel  industry,  and  with  the  inbred  respect  for 
equitable  adjustments  of  rights  between  man  and  man,  which 
is  the  inheritance  of  centuries  of  English  common  law,  the 
miners  only  sought  to  secure  equitable  rights  and  protection 
from  robbery  by  a  simple  agreement  as  to  the  maximum 
size  of  a  surface  claim,  trusting,  with  a  well-founded  confi- 
dence, that  no  machinery  was  necessary  to  enforce  their 
regulations  other  than  the  swift,  rough  blows  of  public  opin- 
ion. The  gold  seekers  were  not  long  in  realizing  that  the 
source  of  the  dust  which  had  worked  its  way  into  the  sands 
and  bars,  and  distributed  its  precious  particles  over  the  bed 
rocks  of  rivers,  was  derived  from  solid  quartz  veins,  which 
were  thin  sheets  of  mineral  material  enclosed  in  the  founda- 
tion rocks  of  the  country.  Still  in  advance  of  any  enactments 
by  legislature  or  congress,  the  common  sense  of  the  miners, 
which  had  proved  strong  enough  to  govern  with  wisdom 
the  ownership  of  placer  mines,  rose  to  meet  the  question  of 
lode  claims,  and  decreed  that  ownership  should  attach  to  the 
thing  of  value,  namely,  the  thin,  sheet-like  veins  of  quartz, 
and  that  a  claim  should  consist  of  a  certain  horizontal  block 
of  the  vein,  however  it  might  run,  but  extending  indefinitely 
downward  with  a  strip  of  surface,  on  or  embracing  the  vein's 
outcrop,  for  the  placing  of  necessary  machinery  and  build- 
ings. Under  this  theory,  the  lode  was  the  property,  and  the 
surface  became  a  mere  easement. 

"This  early  California  theory  of  a  mining  claim,  consisting 
of  a  certain  number  of  running  feet  of  vein  with  a  strip  of  land 
covering  the  surface  length  of  the  claim,  is  the  obvious  foun- 
dation for  the  federal  legislation  and  present  system  of  public 


Historical  Sketch  of  the  Mining  Law  in  California.          1 5 

disposition  and  private  ownership  of  the  mineral  lands  west 
of  the  Missouri  River.  Contrasted  with  this  is  the  mode  of 
disposition  of  mineral-bearing-  lands  east  of  the  Missouri 
River,  where  the  common  law  has  been  the  one  rule,  and 
where  the  surface  tract  has  always  carried  with  it  all  minerals 
vertically  below  it. 

"The  great  coal,  iron,  copper,  lead,  and  zinc  wealth  east 
of  the  Rocky  Mountains,  have  all  passed  with  the  surface 
titles,  and  there  can  be  little  doubt  that  if  California  had  been 
contiguous  to  the  eastern  metallic  regions,  and  its  mineral 
development  progressed  naturally  with  the  advance  of  home 
making-  settlements,  the  power  of  common  law  precedent 
would  have  governed  its  whole  mining  history.  But  Cali- 
fornia was  one  of  those  extraordinary  historic  exceptions 
that  defy  precedent  and  create  original  modes  of  life  and 
law.  And  since  the  developers  of  the  great  precious  metal 
mining  of  the  far  West  have  for  the  most  part  swarmed  out 
of  the  California  hive,  California  ideas  have  not  only  been 
everywhere  dominant  over  the  field  of  industry,  but  have 
stemmed  the  tide  of  federal  land  policy  and  given  us  a  statute 
book  with  English  common  law  in  force  over  half  the  land 
and  California  common  law  ruling  in  the  other." 

"The  discovery  of  gold  in  California/'  says  Justice  Field, 
speaking  from,  the  Supreme  Bench  of  the  United  States,  "was 
followed,  as  is  well  known,  by  an  immense  immigration  into 
the  State,  which  increased  its  population  within  three  or  four 
years  from  a  few  thousand  to  several  hundred  thousand.  The 
lands  in  which  the  precious  metals  were  found  belonged 
to  the  United  States,  and  were  unsurveyed  and  not  open 
by  law  to  occupation  and  settlement.  Little  was  known  of 
them  further  than  that  they  were  situated  in  the  Sierra  Ne- 
vada mountains.  Into  these  mountains  the  emigrants  in  vast 
numbers  penetrated,  occupying  the  ravines,  gulches  and  can- 
yons and  probing  the  earth  in  all  directions  for  the  precious 
metals.  Wherever  they  went  they  carried  with  them  the  love 
of  order  and  system  of  fair  dealing  which  are  the  prominent 
characteristics  of  our  people.  In  every  district  which  they  oc- 
cupied they  framed  certain  rules  for  their  government,  by 


1 6  History  of  the  Bench  and  Bar  of  California. 

which  the  extent  of  ground  they  could  severally  hold  for 
mining  was  designated,  their  possessory  right  to  such  ground 
secured  and  enforced,  and  contests  between  them  either 
avoided  or  determined.  These  rules  boie  a  marked  simi- 
larity, varying  in  'the  several  districts  only  according  to  the 
extent  and  character  of  the  mines;  distinct  provision  being 
made  for  different  kinds  of  mining,  such  as  placer  mining, 
quartz  mining,  and  mining  in  drifts  or  tunnels.  They  all 
recognized  discovery,  followed  by  appropriation,  as  the 
foundation  of  the  possessor's  title,  and  development  by  work- 
ing as  the  condition  of  its  retention.  And  they  were  so 
framed  as  to  secure  to  all  comers  within  practicable  limits 
absolute  equality  of  right  and  privilege  in  working  the  mines. 
Nothing  but  such  equality  would  have  been  tolerated  by  the 
miners,  who  were  emphatically  the  law-makers,  as  respects 
mining  upon  the  public  lands  in  the  State.  The  first  appro- 
priator  was  everywhere  held  to  have,  within  certain  well-de- 
fined limits,  a  better  right  than  others  to  the  claims  taken  up; 
and  in  all  controversies,  except  as  against  the  government, 
he  was  regarded  as  the  original  ownej;,  from  whom  title  was 
to  be  traced.  *  *  *  These  regulations  and  customs 
were  appealed  to  in  controversies  in  the  State  Courts,  and 
received  their  sanction;  and  properties  to  the  value  of  many 
millions  rested  upon  them.  For  eighteen  years,  from  1848 
to  1866,  the  regulations  and  customs  of  miners,  as  enforced 
and  moulded  by  the  Courts  and  sanctioned  by  the  legislation 
of  the  State,  constituted  the  law  governing  property  in  mines 
and  in  water  on  the  public  mineral  lands." 
Jennison  vs.  Kirk,  98  U.  S.  453. 

ORIGIN  OF  RULKS  AND  REGULATIONS. 

There  is  considerable  difference  of  opinion  whether  these 
rules  and  regulations  were  the  spontaneous  creation  of  the 
miners  of  "  '49  and  the  spring  of  '50."  Mr.  Gregory  Yale, 
in  his  valuable  treatise  on  "Mining  Claims  and  Water 
Rights,"  contends  that  they  are  not,  and  claims  that  Senator 
Stewart  of  Nevada,  in  his  brilliant  letter  to  Senator  Ramsey, 
of  Minnesota,  ascribes  undeserved  merit  to  the  early  miners 


Historical  Sketch  of  the  Mining  Law  in  California.          17 

in  pronouncing  them  the  authors  of  the  local  rules  and  cus- 
toms. He  does  not,  however,  criticise  the  even  more  positive 
language  of  Chief  Justice  Sanderson  in  the  decision  of  the 
case  of  Morton  vs.  Solambo  Copper  Mining  Company,  He 
calls  attention  to  the  similarity  between  these  rules  and  reg- 
ulations and  certain  features  of  the  Mexican  ordinances,  of 
the  Spanish  Code,  of  the  regulations  of  the  Stannary  Convo- 
cations among  the  tin  bounders  of  Devon  and  Cornwall,  and 
of  the  High  Peak  Regulations  for  the  lead  mines  of  Derby. 
He  says  in  the  earlier  days  of  placer  digging  in  California 
the  large  influx  of  miners  from  the  western  coast  of  Mexico 
and  from  South  America  dictated  the  system  of  work  to 
Americans;  that  the  latter,  with  few  exceptions  from  the  gold 
mines  of  North  Carolina  and  Georgia,  and  from  the  lead 
mines  of  Illinois  and  Wisconsin,  were  almost  entirely  inexpe- 
rienced in  this  branch  of  industry;  that  the  Cornish  miners 
soon  spread  themselves  through  the  State,  and  added  largely 
by  their  experience,  practical  sense,  and  industrious  habits, 
in  bringing  the  code  into  something  like  shape.  With  all 
deference  due  to  any^  opinion  expressed  by  Mr.  Yale,  it 
appears  to  me  that  he  has  in  this  chapter  failed  sometimes  to 
distinguish  between  the  practical  work  in  mining  taught  the 
pioneers  by  their  Mexican,  Chilenian  and  Cornish  associates 
and  their  comrades  from  the  southern  gold,  and  western  lead 
states,  and  the  framing  of  -rules  and  regulations.  The  hints 
and  suggestions  on  the  pan  and  rocker  and  long  torn  and 
sluice  do  not  necessarily  include  instructions  on  a  code  of 
mining  in  a  situation  absolutely  as  novel  to  the  persons  from 
whom  they  learned  how  to  mine  as  it  was  to  the  pioneers 
themselves.  The  mining  land  in  North  Carolina,  Georgia, 
Illinois  and  Wisconsin  is  all  held  under  principles  founded  on 
the  common  law  of  England.  Nor  is  it  necessary  to  hold 
with  Mr.  Yale  and  General  Halleck  that  the  Mexican  system 
was  the  foundation  for  the  rules  and  customs  adopted,  for  in 
the  matter  of  lode  claims  that  system  is  the  direct  antithesis 
of  the  California  system,  the  former  recognizing  vertical 
planes  through  the  exterior  boundaries  and  the  latter  recog- 
nizing the  extra-lateral  right.  The  mere  fact  that  the  Mexi- 


1 8  History  of  the  Bench  and  Bar  of  California. 

can  system  recognized  discovery  as  the  source  of  title  and 
development  as  the  condition  of  holding  it,  need  not  cause  us 
to  jump  to  the  conclusion  that  in  these  respects  the  rules  and 
customs  of  Californians  were  a  conscious  imitation  of  the 
Mexican  system,  especially  when  the  two  systems  are  so 
radically  dissimilar  in  other  points.  In  a  region  where  the 
only  title  could  be  possessory,  and  possibly  temporary,  under 
the  law,  what  other  arrangement  in  these  respects  than  the 
one  adopted  could  have  suggested  itself  to  the  pioneers? 
May  it  not  be  simply  another  illustration  of  the  fact  that, 
with  the  same  problem  and  the  same  environment,  the  human 
mind  has  in  different  ages  often  arrived  at  the  same  practical 
solution.  Even  the  idea  of  the  story  of  the  Jumping  Frog 
of  Calaveras  need  not  necessarily  be  deemed  a  conscious 
imitation  of  its  Boeotian  prototype. 

The  California  pioneers  who  were  Americans  did  not  have 
to  learn  the  science  of  organization  from  their  foreign  asso- 
ciates. The  instinct  of  organization  was  a  part  of  their 
heredity.  Professor  Macy,  of  Johns  Hopkins  University, 
once  wrote :  "It  has  been  said  that  if  three  Americans  meet 
to  talk  over  an  item  of  business,  the  first  thing  they  do  is  to 
organize."  This  trait  is  as  characteristic  as  the  one  of  peri- 
odically saving  the  country  by  assembling  in  mass  meeting 
and  passing  resolutions.  Californians  were  not  the  first 
American  early  settlers  upon  the  public  domain  of  the  United 
States  who  were  left  for  a  time  without  statutory  law,  federal 
or  local.  The  institutional  beginnings  of  more  than  one 
western  state,  notably  of  Wisconsin  and  Iowa,  furnish  a  most 
interesting  parallel,  and  the  groundwork  of  their  rules  and 
regulations,  except  with  regard  to'  the  extra-lateral  right  in 
mining,  are  in  many  respects  absolutely  identical.  The  lead 
miners  of  Dubuque  who  on  the  I7th  of  June,  1830,  assembled 
around  an  old  cottonwool  log,  stranded  on  an  island,  and 
appointed  a  committee  of  five  miners  to  draw  up  regulations 
for  their  government,  would  have  been  surprised  to  be  told 
in  after  years  that  the  rules  they  framed  had  any  other  source 
for  their  inspiration  than  the  courage,  the  necessities  and  the 
resourcefulness  of  intelligent  frontiersmen. 


Historical  Sketch  of  the  Mining  Law  in  California.          19 
EARLY  RULES  AND  REGULATIONS. 

"In  the  early  days  of  placer  mining,"  says  Mr.  Hittell, 
in  his  'History  of  California/  Vol.  3,  Page  252,  "it  was  not 
uncommon  to  fix  the  size  of  a  claim  at  ten  feet  square;  but 
it  was  only  in  very  rich  ground  that  this  quantity  was  found 
to  be  sufficient.  In  poorer  localities  or  where  ground  had 
been  once  partially  worked,  the  size  was  usually  one  hundred 
feet  square,  though  there  were  many  variations  according 
to  circumstances — the  idea  in  each  case  being  to  afford 
every  man  a  fair  chance  to  accumulate  wealth,  and  with  this 
object  in  view  to  give  him  as  much  ground  as  he  could  pos- 
sibly use.  The  next  provision — and  a  remarkable  and  im- 
portant one — was  that  the  claim  could  only  be  held  while 
it  was  being  reasonably  worked.  It  was  usual  to  provide 
that  when  a  claim  was  taken  up,  stakes  should  be  driven  at 
the  corners  or  written  notices  of  appropriation  posted  up 
or  an  entry  made  in  a  record  book  open  to  the  public;  and 
sometimes  several  of  these  modes  or  others  equally  effica- 
cious in  giving  information  were  required;  but  in  all  cases 
the  fee  of  the  land  was  regarded  as  belonging  to  the  gov- 
ernment, and  no  person  could  acquire  any  ownership  beyond 
the  mere  use  for  mining  purposes,  and  that  only  while  being 
so  used.  A  very  common  condition  was  that  a  certain 
amount  of  work  should  be  done  within  a  specified  time, 
sometimes  a  certain  amount  every  week  during  the  mining 
season;  or  otherwise  that  the  claim  should  be  liable  to  be 
taken  up  by  anybody  else.  So,  also,  if  a  person  went  away 
from  his  claim  without  leaving  his  tools  or  some  other 
understood  evidence  of  an  intention  of  returning  and  resum- 
ing work.  Here,  again,  it  was  the  same  principle  of  the 
equality  of  every  man  and  his  right  to  an  equal  chance  with 
his  fellows ;  on  the  one  hand  securing  'him  in  his  possession  and 
the  fruits  of  his  labor,  but  on  the  other  hand  offering  to  each 
of  his  fellows  the  same  privilege,  if  he  failed  to  make  use  of 
them.  The  condition  under  which  claims  could  be  held  and 
the  circumstances  under  which  they  could  be  forfeited, 
together  with  the  size  of  the  claims  and  the  manner  of  set- 
tling disputes,  constituted  the  chief  points  embraced  in  what 


2O  History  of  the  Bench  and  Bar  of  California. 

were  known  as  the  mining  laws  or  mining  customs.  There 
were,  of  course,  variations  in  different  localities.  In  most 
cases  the  first  discoverer  or  locator  of  a  mining  region  was 
entitled  to  more  ground  than  any  other  miner,  generally  to 
twice  as  much;  and  in  many  cases,  special  provisions  were 
made  about  sales  and  purchase  of  claims  and  the  authenti- 
cation of  bills  of  sale,  which  were  the  usual  instruments  by 
which  claims  were,  conveyed. 

"Obviously  no  customs  or  laws  could  be  adopted  without 
some  kind  of  consensus  or  assent  on  the  part  of  the  mining 
community.  This  was  at  first  generally  merely  the  agree- 
ment of  the  particular  company  or  camp,  which  might  have 
its  own  separate  and  distinct  rules  and  regulations  different 
from  all  its  neighbors;  but  by  degrees  meetings  of  the  miners 
of  different  camps  and  at  length  of  whole  neighborhoods 
were  held,  until  finally  it  became  common  to  form  what 
are  known  as  mining  districts,  embracing  large  tracts  of  ter- 
ritory and  to  adopt  laws  applicable  to  and  effective  through- 
out the  whole  territory  so  included.  *  *  *  And  there 
were  a  great  many  hundreds  of  them.  Nearly  every  bar, 
flat  and  gulch  had  its  separate  rules.  Their  jurisdictions 
were  ferequently  changed,  some  consolidating  into  large 
districts  and  others  dividing  into  smaller  ones — the  changes 
being  dependent  chiefly  upon  the  character  as  to  homoge- 
neousness  or  otherwise  of  the  mining  region  embraced  and 
the  convenience  for  the  miners  of  access  to  a  common  place 
of  meeting." 

DESCRIPTION  OF  RULES  AND  REGULATIONS. 

Mr.  Ross  Browne,  in  his  preliminary  report  on  the  Min- 
eral Resources  of  the  West,  made  in  1867  (p.  226),  in  describ- 
ing the  nature  of  these  regulations,  says : 

"It  is  impossible  to  obtain,  within  the  brief  time  allowed 
for  this  preliminary  report,  a  complete  collection  of  the  min- 
ing regulations,  and  they  are  so  numerous  that  they  would 
fill  a  volume  of  a  thousand  pages.  There  are  not  less  than 
five  hundred  mining  districts  in  California,  two  hundred  in 
Nevada,  and  one  hundred  each  in  Arizona.  Idaho  and  Ore- 


Historical  Sketch  of  the  Mining  Law  in  California.          21 

gon,  each  with  its  set  of  written  regulations.  The  main 
objects  of  the  regulations  are  to  fix  the  boundaries  of  the 
district,  the  size  of  the  claims,  the  manner  in  which  claims 
shall  be  marked  and  recorded,  the  amount  of  work  which 
must  be  done  to  secure  the  title,  and  the  circumstances 
under  which  the  claim  is  considered  abandoned  and  open  to 
occupation  by  new  claimants.  The  districts  usually  do  not 
contain  more  than  a  hundred  square  miles,  frequently  not 
more  than  ten,  and  there  are  in  places  a  dozen  within  a 
radius  of  ten  miles.  In  lode  mining,  the  claims  are  usually 
two  hundred  feet  long  on  the  lode;  in  placers  the  size  depends 
on  the  character  of  the  diggings  and  the  amount  of  labor 
necessary  to  open  them.  In  hill  diggings,  where  the  pay 
dirt  is  reached  by  long  tunnels,  the  claim  is  usually  a  hundred 
feet  wide,  and  reaches  to  the  middle  of  the  hill.  Neglect  to 
work  a  placer  claim  for  ten  days  in  the  season  when  it  can  be 
worked  is  ordinarily  considered  as  an  abandonment.  The 
regulations  in  the  different  districts  are  so  various,  however, 
that  it  is  impossible  to  reduce  them  to  a  few  classes  compre- 
hending all  their  provisions." 

The  most  succinct  and  accurate  description  of  the  rules 
and  regulations  of  the  California  miners,  and  especially  of 
the  manner  of  marking  the  boundaries  of  the  claims,  both 
placer  and  lode,  is  from  the  pen  of  Chief  Justice  Beatty 
(Report  Public  Land  Commission,  p.  396) : 

"When  placer  mining  began  in  California  there  was  no 
law  regulating  the  size  of  claims  or  the  manner  of  holding 
and  working  them,  and  local  regulations  by  the  miners 
themselves  became  a  necessity.  They  were  adopted,  not 
because  the  subject  was  too  complicated  or  difficult  for 
general  regulation,  but  because  they  were  needed  at  once 
as  the  sole  refuge  from  anarchy.  The  first  and  most  impor- 
tant matter  to  be  regulated  was  the  size  of  claims,  and  the 
earliest  miners'  rules  contained  little  else  than  a  limitation 
of  the  maximum  amount  of  mining  ground  that  one  miner 
might  hold.  That  being  determined,  he  was  left  to  take 
possession  of  his  claim  and  work  it  as  he  pleased.  It  thus 


22  History  of  the  Bench  and  Bar  of  California. 

appears  that  the  location  of  a  mining  claim  was  nothing 
more  nor  less  than  the  taking  into  actual  possession  of  a 
limited  quantity  of  mining  ground,  and  this  was  accom- 
plished by  simply  marking  its  boundaries  and  going  to 
work  inside  of  them.  But  in  taking  possession  of  their 
claims  miners  sometimes  failed  to  mark  their  boundaries 
as  distinct  or  to  do  as  much  work  on  them  as  later  comers, 
desirous  of  securing  claims  for  themselves,  thought  essen- 
tial to  an  actual  possession.  Hence  arose  disputes  and  vio- 
lent conflicts.  The  next  and  final  step  in  the  development 
of  miners'  law  accordingly  was  the  regulation  of  the  mode 
of  marking  the  boundaries  or  otherwise  designating  the 
locality  and  extent  of  claims  and  the  quantum  of  work  that 
must  be  done  to  hold  them.  As  a  fence  around  a  claim  was 
utterly  useless,  four  stakes  at  the  corners  or  two  stakes 
at  the  ends  of  the  river  boundary  of  a  placer  claim  were 
usually  allowed  to  be  a  sufficient  marking  of  its  extent; 
but,  in  this  connection,  a  written  notice,  descriptive  of  the 
claim  and  containing  the  name  of  the  owner,  was  some- 
times required  to  be  posted  on  the  ground  and  recorded 
by  the  district  recorder.  Then,  as  it  was  frequently  impos- 
sible to  continue  work  upon  a  claim  on  account  of  scarcity 
or  superabundance  of  water,  and  as  miners  were  frequently 
driven  from  the  vicinity  of  their  claims  by  the  severity  of 
the  winter  season,  the  rules  went  on  to  prescribe  the  mini- 
mum number  of  days'  work  per  annum  by  which  a  claim 
could  be  kept  good,  or  the  maximum  of  time  during  which 
the  miner  might  absent  himself  from  his  claim  without 
beng  deemed  to  have  forfeited  or  abandoned  it.  In  rare 
and  exceptional  instances  miners  may  have  attempted  to 
extend  their  regulations  to  other  matters  than  those  men- 
tioned, but  I  risk  nothing  in  saying  that  the  above  state- 
ment embraces  the  essence  of  all  the  miiners'  law  of  the 
Pacific  Coast  relating  to  placer  claims.  After  these  regu- 
lations had  been  some  time  in  force  came  the  discovery  of 
veins  or  lodes  of  gold  bearing  rock  in  place,  and  to  them 
the  law  of  the  placers  was  adapted  with  the  least  possible 
change. 


Historical  Sketch  of  the  Mining  Law  in  California.          23 

"First — The  size  of  claims  was  regulated  by  allowing 
so  many  feet  along  the  vein. 

"Second — The  mode  of  making  out  or  designating  the 
claim  was  prescribed;  and 

"Third — The  amount  of  work  necessary  to  hold  it. 

"The  principal  modification  of  the  placer-mining  law 
as  adapted  to  lode  claims  was  upon  the  second  point.  The 
placers  were  located  as  surface  claims  and  were  best  marked 
by  stakes  at  the  corners;  notice  and  record,  when  required, 
being  deemed  of  minor  importance.  In  lode  claims  these 
conditions  were  reversed.  The  exact  course  or  strike  of 
a  lode  was  seldom  ascertainable  from  the  croppings  at  the 
point  of  discovery;  and  as  the  claim  \vas  of  so  much  of  the 
lode  in  whatever  direction  it  might  be  found  to  run,  with 
a  strip  of  the  adjacent  surface,  taken  for  convenience  in 
working  the  lode  and  as  a  mere  incident  or  appurtenance 
thereto,  it  was  found  to  be  impracticable  to  mark  the  claim 
by  stakes  on  the  surface,  and  hence  the  notice  and  record 
came  to  play  a  more  important  part  in  designating  the 
claim.  They  came  in  fact  to  be  all-important,  locations 
of  lode  claims  being  commonly  made  by  posting  a  notice 
in  reasonable  proximity  to  the  point  at  which  the  lode  was 
discovered  or  exposed,  stating  that  the  undersigned  claimed 
so  many  feet  of  the  vein  extendng  so  far  and  in  such  direc- 
tion or  directions  from  the  discovery  point,  together  with 
the  amount  of  adjacent  surface  ground  allowed  by  the  rules 
of  the  district.  The  notice  so  posted  had  the  effect  under 
the  rules  of  holding  the  ground  described  a  certain  length 
of  time,  commonly  ten  days,  within  which  time  it  was  neces- 
sary to  have  the  notice  recorded  in  the  district  records  in 
order  to  keep  the  claim  good.  This  was  all  that  was  re- 
quired under  the  head  of  marking  or  designating  the  local- 
ity and  extent  of  the  claim,  and  it  was  thereafter  held  by 
simply  doing  the  prescribed  amount  of  work.  This  was 
the  sum  total  of  the  California  miners'  law." 

In  view  of  the  historical  importance  of  the  fugitive  rec- 
ords of  the  local  rules  and  regulations  of  the  various  min- 
ing districts,  and  as  some  of  the  provisions  of  many  of 


24  History  of  the  Bench  and  Bar  of  California. 

them  are,  under  our  peculiar  federal  legislation,  still  in 
force,  I  have,  at  the  risk  of  being  statistical,  endeavored 
to  collate  the  names  of  the  different  districts  and  the  dates 
of  adoption  of  the  several  codes  of  rules  and  regulations, 
and  to  point  out  where  authentic  records  thereof  are  ex- 
tant. Where  I  have  not  specifically  referred  to  the  particu- 
lar work  from  which  the  record  is  taken,  it  is  in  all  cases 
to  be  found  in  the  invaluable  collection  of  the  local  rules 
and  regulations  of  the  miners  of  California  contained  in 
the  official  Report  of  the  United  States  Census  for  1880, 
Vol.  XIV,  pages  271  to  345,  inclusive.  The  record  is  as 
follows : 

EARLY    MINING  DISTRICTS   OF   CALIFORNIA. 

NEVADA  COUNTY— 

Neveda  courtly  quartz  regulations,  December  20,  1852.  Ex- 
tend over  all  quartz  mines  and  quartz  mining  property  within 
the  county. 

Gold  Mountain  mining  district,  December  30,  1850 ;  con- 
tinued March  17,  1851 ;  amended  September  29,  1851 ;  last 
amendment  repealed  October  5,  1851 ;  regulations  extended, 
September  29,  1852;  regulations  extended  December  15,  1853. 

Union  Quartz  Mountain  mining  district,  February  30,  1851  ; 
amended  May  24,  1851. 

Kentucky  Hill  mining  district,  May   I,   1851. 

Prospect    Hill    mining    district,    May    I,    1851. 

Saunders   Ledge   mining   district,  June   6,    1851. 

Day's   Ledge  mining  district,   October  21,    1851. 

Lafayette  Hill   mining  district,   November   10,    1851- 

Indian  Springs  Hill  mining  district,  November  17,  1851. 

Jefferson  Hill  No.  i  mining  district,  December  16.  1851. 

Mary's   Diggings   mining  district,   December  31,    1851. 

Rebecca's  Hill   mining  district,  January  3,    1852. 

Weehawken  Hill  mining;  district,  June  16,   1852. 

Rockwell  Hill  mining  district,  June   17,   1852. 

Brooklyn  Hill  mining  district,  June  22,  1852. 

Nebold  Hill  mining  district,  June  22,  1852. 

Mount  Olivet  mining  district,  June  25,  1852. 

Union  Hill  No.  2  mining  district,  June  25,  1852. 

Buffalo  Hill  mining  district  (no  date)  ;  transferred  to  book 
of  Township  Recorder,  June  15,  1852. 

Caledonia   Hill   mining   district,   June   29,    1852. 

Pecker's  Hill  mining  district,  June  29,   1852. 

Poppysquash   Hill   mining   district,   June  30,    1852. 

Pierce's  Ledge  (formerly  Indian  Hill)  mining  district, 
July  22,  1852. 

Sierra  Nevada  Hill  mining  district,  August  10,  1852. 

Blethen  Hill  mining  district,  August  21,  1852. 

Mount  Pleasant  mining  district,  October  u,  1852. 

Constitution  Hill  mining  district,  October  12,  1852.  Jumped 
and  called  Iowa  Hill,  April  17,  1854. 


Historical  Sketch  o/  the  Mining  Law  in  California.          25 

Cedar  Hill  mining  district,  October  17,  1852. 

Washington  Hill   mining  district,   November   15,   1852. 

Boston  Hill  mining  district,  November  21,  1852. 

Norton's  Hill  mining  district,  December  o.  1852. 

Empire    Hill    No.    i    mining    district,    1852. 

'Kosciusko  Hill  mining  district,  January  I,  1853. 

Ben.  Franklin  Ledge  mining  district,  January  28,  1853. 

Jefferson    Ledge    mining   district,    February   25,    1853. 

Pyrenees    Hill    mining   district,    September    23,    1853. 

lone  Ledge  mining  district,  August  24,  1854. 

Madison  Quartz  Ledge  and  Hill  mining  district,  August 
18,  1855- 

Hoosac  Hill  mining  district,   (no  date). 

Rhode  Island  HilT  mining  district   (no  date). 

Sebastopool   Ledge   mining  district    (no   date). 

Ashville  Hill  mining  district.  Same  regulations  as  Cedar 
Hill. 

Oak  Hill  mining  district.  Same  regulations  as  Cedar 
Hill. 

Sweetland  mining  district,  1850;  amended  in  .1852;  divided 
into  three  districts  with  separate  regulations  (Hittell's  His- 
tory of  California,  Vol.  Ill,  page  260). 

North  San  Juan  Placer  regulations,  November  5,  1854, 
(Ross  Browne's  Mineral  Resources  of  the  West,  1867,  page 
240.) 

Albion  Hill,  Gold  Hill  No.  2,  Independence  Ledge,  Ken- 
tucky Fountain  Ledge,  Lewis'  Lead,  North  Point  Ledge,  Oro 
Fino  Hill,  Ohio  Hill,  Pine  Hill  Ledge,  Quimbaugh  Hill,  Rich- 
mond Hill,  Squirrel  Creek  Hill,  St.  Louis  Ledge,  Texas  Ledge, 
and  Trenton  Ledge  mining  districts  are  all  governed  by  the 
county  laws. 

TUOLUMNE  COUNTY— 

Jackass  Gulch  mining  district  (including  Soldier  Gulch), 
1848;  regulations  put  into  writing  in  1851.  (Hittell's  History 
of  California,  Vol.  Ill,  page  257 ;  Shinn's  Mining  Camps,  page 
237-) 

Jacksonville  mining  district,  January  20,  1850.  (The  Pub- 
lic Domain.  1883,  page  317;  Hittell's  History  of  California, 
Vol.  Ill,  page  130.) 

Jamestown  mining  district  (no  date)  ;  laws  repealed  and 
new  regulations  adopted,  1853.  (Hittell's  History  of  Cali- 
fornia, Vol.  Ill,  page  258.) 

Springfield  mining  district,  December,  1854.     (Yale's  Min- 
ing Claims  and  Water  Rights,  page  84 ;   Hittell's  History  of  . 
California,  Vol.  Ill,  page  258;   Shinn's  Mining  Camps-,  pages 
238-242.) 

Shaw's  Flat  mining  district  (no  date).  (Hittell's  Cal- 
ifornia, Vol.  Ill,  page  259.) 

Sawmill  Flat  mining  district  (no  date).  Hittell's  Cal- 
ifornia, Vol.  Ill,  page  259.} 

Brown's  Flat  mining  district  (no  date).  Hittell's  Cal- 
ifornia, Vol.  Ill,  page  259.) 

Jackson  Flat  and  Tuttletown  mining  district,  November. 
1855.  (Yale's  Mining  Claims  and  Water  Rights,  page  84; 
Hindi's  California,  Vol.  Ill,  page  259;  Shinn's  Mining  Camps, 
pages  240-242.) 

Columbia  district  placer  regulations.  (Ross  Browne's  Min- 
eral Resources  of  the  West,  1867,  page  238.) 


26  History  of  the  Bench  and  Bar  of  California. 

New  Kanaka  Camp  placer  regulations.  (Ross  Browne's 
Mineral  Resources  of  the  West,  1867,  page  238.) 

Tuolumne  county  quartz  regulations,  in  force  September 
i,  1858,  extending  over  and  governing  all  quartz  mining  prop- 
erty within  the  county.  (Ross  Browne's  Mineral  Resources 
of  the  West,  1867,  page  237.) 

MARIPOSA  COUNTY— 

Rules  adopted  at  convention  of  quartz  miners  at  Quartz- 
burg,  June  25,  1851. 

Coulterville  mining  district,  March  5,  1864. 

AM ADO R   COUNTY— 

Drytown  mining  district,  June  7,  1851,  consisting  of  al! 
that  portion  of  the  then  county  of  Calaveras  south  of  the 
divding  ridge  between  the  Cosumnes  river  and  Dry  creek,  and 
north  of  the  Mokelumne  river. 

Volcano  quartz  mining  district,  February  6,  1858.  J.  Tul- 
lock  and  F.  Reichling  the  committee  that  drafted  the  code. 

"Jackson  and  all  other  Veins  of  Metal  District,"  February 
7,  1863 ;  amended  May  22,  1863. 

Puckerville  (now  Plymouth)  mining  district,  February  n, 
1863.  B.  F.  Richtmyer,  secretary.  E.  S.  Potter  elected  re- 
corder ;  new  regulations  adopted  at  store  of  F.  Sheaver,  May 

23,  1863. 

Clinton  mining  regulations.  (Ross  Browne's  Mineral  Re- 
sources of  the  United  States,  1868,  page  73.) 

Pine  Grove  mining  regulations.  (Ross  Browne's  Mineral 
Resources  of  the  United  States,  1868,  page  73.) 

EL  DORADO  COUNTY— 

Grizzly  Flat  mining  district.  February  4.  1852;  amended 
February  26,  1853 ;  none  of  the  books  containing  records  made 
under  the  first  laws  are  in  existence;  amended  and  name 
changed  to  Mount  Pleasant  mining  district. 

French  Town  mining  district,  November  12,^1854;  amended 
January  3,  1858;  amended  April  6,  1859;  amended  March  20, 
1863- 

Smith's  Flat  mining  district  (no  date  of  adoption  given)  ; 
amended  February  20,  1855 ;  amended  February  12,  1873. 

Spanish  Camp  quartz  mining  district,  April,  1862 ;  name 
changed  to  Agra  district,  June  14,  1866. 

Diamond  quartz  mining  district,   February   14.   1863. 

Plaoerville   mining   district,   March   21,    1863. 

El  Dorado   (Mud  Springs)   mining  district,  April  7,  1863. 

Big  Canyon  quartz  mining  district,   November   u,   1865. 

Henry's   Diggings   mining  district,   June,    1867. 

Kelsey  mining  district,  regulations  adopted  May  7,  1873  5 
in  conformity  with  the  Mineral  Law  of  Congress  of  May 
10,  1872. 

Greenwood  mining  district  (no  date).  No  written  regula- 
tions now  in  force. 

CALAVERAS  COUNTY— 

Angels    mining    district,    July    20,    1855;    amended    March 

24,  1860.     Record  of  district  mining  locations  burned  in  1855. 
Murphy's  mining  district,  October  26,  1857. 


Historical  Sketch  of  the  Mining  Law  inCalifornia.          27 

Lower  Calaveritas  mining  district.  November  7,  1857; 
amended  June  28,  1858 ;  amended  April  4,  1863. 

San  Andreas  mining  district,  March,  1866;  amended  Arti- 
cle XVI  (no  date). 

Pilot  Hill  placer  regulations.  (Ross  Browne's  Mineral 
Resources  of  the  West,  1867,  page  241.) 

Copper  Canyon  regulations,  adopted  August  3,  1860. 
(Ross  Browne's  Mineral  Resources  of  the  West.  1867,  page 
242.) 

PLUMAS  COUNTY— 

Warren  Hill  mining  district,  October  22.  1853.  Creed 
Haymond,  secretary. 

South  Placer,  quartz  regulations.  (Ross  Browne's  Min- 
eral Resources  of  the  United  States,  1868,  page  108.) 

Canada  Hill  quartz  regulations.  (Ross  Browne's  Min- 
eral Resources  of  the  United  States,  1868,  page  108.) 

Lone  Star  quartz  regulations.  (Ross  Browne's  Min- 
eral Resources  of.  the  United  States,  1868,  page  108.) 

SIERRA   COUNTY— 

Saint   Louis    mining   district,   July   6,    1856. 

Gibsonville   mining   district,   January   8,    1857. 

Wet    Ravine    mining    district    (no    date). 

Trigaski  Flat  mining  district.  (Yale's  Mining  Claims  and 
Water  Rights,  page  75;  Prosser  vs.  Parks,  18  Cal.,  47.) 

Sierra  county  quartz  mining  district,  June  6,  1859.  Extends 
over  all  quartz  mining  claims  in  the  county. 

RUTTE  COUNTY— 

Rich  Gulch  quartz  mining  district,  November  15,  1851  f 
further  regulations  May  22,  1852. 

Con  Cow  mining  district,  August  28,  1880. 

Oregon  Gulch  mining  district,  December  20,  1885 ;  placer 
regulations  amended  June  17,  1861 ;  quartz  regulations 
amended  August  13,  (no  year  specified)  ;  both  placer  and 
quartz  regulations  amended"  February  3,  1872. 

Helltown  and  Centerville  mining  district,  October  n, 
1857;  amended  March  23,  1878. 

Cherokee  Flat  mining  district,  November  19,  1861 ;  amended 
September  23,  1871. 

Forbestown  mining   district,   June  9,   1863. 

Lovelock  mining  district,  April  3,  1865;  amended,  prob- 
ably, after  May  10,  1872. 

Greely  Flat  mining  district,  December  12,  1872. 

Live  Oak  Flat  mining  district,  July  5,  1872. 

Megalia  mining  district,  since  May  10,  1872.  Old  laws  of 
the  district  lost  and  abrogated  by  custom  and  usage  of  the 
miners. 

Forks  of  Butte  mining  district,  June  i,  1878. 

Inskip  mining  district,  May  17,  1879. 

Bangor  quartz  regulations.  (Ross  Browne's  Resources  of 
the  United  States,  1868,  page  162.) 

Thompson's  Flat  mining  district,  1851.  The  books  were 
lost  in  1857. 

Bidwell's  Bar  mining  district,  1850;  reorganized  1863. 
Original  regulations  and  records  destroyed  by  fire,  1854:  regu- 
lations of  second  organization  also  lost. 


28  History  of  the  Bench  and  Bar  of  California. 

YUBA   COUNTY— 

Upper    Yuba    mining   district,    April    n,    1852. 

Sucker  Flat  mining  district,  January  22,  1855;  adjourned 
meeting  January  25,  1855;  amended  December  31,  1855; 
amended  February  10.  1868. 

Ohio  Flat  mining  district.  March  8,  1856;  laws  adopted 
March  15,  1856;  amended  November  12,  1857.  By-laws 
adopted  May  15,  1858. 

Odd  Fellows  mining  district.  On  account  of  record  book 
containing  laws  having  been  destroyed,  new  regulations 
adopted  September  24,  1864. 

Indiana  Ranch  quartz  mining  district,  April  18,  1857 ; 
amended  November  7,  1857;  amended  March  13,  1864; 
amended  April  25,  1878 

Brownsville  mining  district,  April  7,   1860;  amended  April 

7,  1862. 

Empire   mining   district,   January   22,    1863. 

Dobbin's  Creek  mining  district,  March  26,  1864;  approved 
April  17,  1864. 

Oregon  Hill  mining  district  (no  date).  First  recording 
February  17,  1864. 

Brown's  Valley  mining  district.  February  14,  1852;  re- 
pealed and  new  regulations  adopted  February  14,  1853; 
amended  July  31,  1853;  amended  August  8,  1853;  amended 
January  4,  1864 ;  amended  January  2,  1865  ;  amended  January 

8,  1866;  amended  January  7,  1867.      (Ross  Browne's  Mineral 
Resources  of  the  United  States,  1868,  pages  155-156;   Shinn's 
Mining  Camps,  page  249.)     Reorganized,  May  3,  1870.    (Tenth 
Census  of  the  United  States,  i88o,_  Vol.  XIV.  page  319.) 

TRINITY  COUNTY— 

East  Fork  of  North  Trinity,  mining  district,  February  17, 
1852. 

Weaver  Creek  mining  district.  June   19,   1852. 
Weaverville    mining   district,   June   7,    1853- 
Democrat  Gulch  mining  district,   September  3,   1856. 

SISKIYOU  COUNTY— 

Lower   Humbug   Creek  mining  district,  April   7,   1855. 
Oro  Fino  Diggings  mining  district,   February  6,   1856. 
Little  Humbug  Creek  mining  district,  April  8,   1856. 
Maine  Little  Humbug  Creek  mining  district,  October  8,  1856. 
Hungry  Creek  Diggrngs  mining  district,  October  24,  1857 ; 
amended  January  27,  1858. 

Empire    mining    district,    February    15.    1864. 

PLACER  COUNTY— 

Illinoistown  mining  district,  March  21.  1863;  amended  Sec- 
tion 4  (no  date). 

Dutch  Flat  mining  district  (no  records  to  be  found). 

Auburn  mining  district  (no  date).  The  old  mining  laws 
are  lost  or  destroyed. 

Yankee  Jim's  mining  district.  Copies  of  the  old  mining 
laws  are  still  in  existence. 

Bath  mining  district  (no  date).  The  old  mining  laws  are 
not  to  be  found. 


Historical  Sketch  of  the  Mining  Law  in  California.          29 

Forest  Hill  mining  district  (no  date).  "The  district  is 
bounded  on  the  north  by  Shirt-Tail  canyon,  etc."  The  mining 
laws  have  been  burned. 

Iowa  Hill  mining  district  (no  date).  The  mining  laws  have 
not  been  in  use,  nor  has  organization  been  kept  up  since 
about  1865. 

SACRAMENTO   COUNTY— 

Folsom  quartz  mining  district,  January  22,  1857.  Adopted 
at  the  house  of  Colonel  Russ  on  Prospect  Hill,  in  the  town 
of  Russville  (Ashland),  and  "extend  over  all  quartz  mines 
and  quartz  mining  property  within  the  county  of  Sacramento." 

MONO  COUNTY— 

Bodie  mining  district,  July  10,  1860;  amended  at  the  Tay- 
lor cabin,  August  10,  1861  ;  amended  at  Burnett's  cabin,  June 
7,  1862;  amended  at  Leach  and  Monroe's  cabin,  June  9,  1862; 
amended  November  12,  1862;  amended  at  the  house  of  J. 
Elnathan  Smith,  Jr.,  March  4,  1864;  amended  at  the  house 
of  Biderman  and  Pooler,  October  24,  1864,  six  members  pres- 
ent; amended  at  Wand  &  Barker's  saloon,  October  5,  1865, 
one  article  being  adopted  by  a  vote  of  five  to  four;  amended 
at  house  of  E.  D.  Barker,  March  3,  1866;  amended  at  house 
of  Robert  Kernahan.  March  4,  1867;  amended  at  house  of  F. 
Swenson,  November  13,  1867 ;  amended  in  sa'oon  of  J.  C.  Smith 
at  7  P.  M.,  December  30.  1876. 

Blind  Springs  mining  district,  March  23,  1865 ;  amended 
May  4.  1865;  amended  July  8,  1865;  amended  November  18, 
1865;  amended  November  25,  1865;  amended  March  20.  1875; 
amended  March  27.  1875. 

Homer  mining  district.  October  o,  1879;  "adopted  United 
States  mining  law  of  March  10,  1872." 

CONTRA   COSTA   COUNTY— 

Marsh  Creek  mining  district.  May  27,  1865. 

SAN  BERNARDINO  COUNTY— 

Borax    Lake   mining   district,   April   28,    1873. 
Brier  mining  district.  May  3,  1873. 
Cajon  mining  district,  March   19.  1874- 
Upper  Yreka  Creek  mining  district    (no  date). 

Some  of  the  provisions  of  these  rules  and  regulations, 
outside  of  the.  general  provisions  already  referred  to,  are 
interesting  and  instructive. 

SOME  CHARACTERISTIC   PROVISIONS. 

In  the  Helltown  District,  in  Butte  County,  for  instance, 
all  kinds  of  placer  mining  existed,  and  the  rules  and  regu- 
lations, among  other  things,  define  and  prescribe  as  fol- 
lows : 


3d  History  of  the  Bench  and  Bar  of  California. 

"First — Claims  shall  consist  of  four  classes:  (i)  River 
claims.  (2)  Bar,  bench  or  flat  claims.  (3)  Ravine  claims. 
(4)  Hill  claims. 

"Second — River  claims  shall  be  all  that  is  drained,  except 
such  parts  of  the  ground  as  may  be  claimed  previous  to  giving 
notice  of  intention  to  drain  such  ground. 

"Third — Bar,  bench  or  flat  claims  shall  be  one  hundred 
feet,  facing  the  river,  and  shall  extend  at  right  angles  across 
>§uoh  bar,  bench  or  flat,  across  the  supposed  channel  to  the 
final  raise  of  the  bed-rock. 

"Fourth — Ravine  claims  shall  extend  one  hundred  and  fifty 
feet  up  or  down  the  ravine,  and  not  exceed  forty  feet  in 
width,  and  may  be  located  in  the  center  or  on  either  side. 

"Fifth — Hill,  deep  or  coyote  diggings  shall  consists  of 
one  hundred  feet  to  the  man,  running  crosswise  of  the  hill, 
through  it,  or  to  unlimited  extent. 

"Sixth — Claims  or  river  bars,  benches  or  flats  that  may 
be  worked  by  the  water  from  the  river  or  creek  shall  be  con- 
sidered as  wet  diggings,  and  ravines  that  are  dependent  on  the 
rainy  season  for  water  shall  be  considered  as  dry  diggings. 

"Seventh — Any  one  holding  a  claim  or  claims  shall  work 
the  same  when  workable  as  often  as  one  day  in  each  week,  to 
have  them  represented  by  another,  or  forfeit  his  right  to  them 
unless  prevented  by  sickness." 

The  following  taken    from    the    regulations    of    Little 

Humbug     Creek  Mining     District,     in     Siskiyou     County, 

throws    a    human  side-light    on    life    in  the    early    mining 
camps : 

"Art.  VII — Resolved,  That  no  person's  claim  shall  be 
jumpable  on  Little  Humbug  while  he  is  sick  or  in  any  other 
way  disabled  from  labor,  or  while  he  is  absent  from  his 
claim  attending  upon  sick  friends." 

The    ease   with   which    rules   and    regulations   could    be 
repealed  or  amended  is  illustrated  in  the  following: 

"Sec.  VIII — The  laws  may  be  altered  or  amended  at  any 
meeting  by  a  majority  present,  provinding  there  shall  have 
been  notice  of  'such  an  alteration  or  amendment  given  in  the 
notice  of  the  meeting  calling  it." — Regulations  of  Ohio  Flat 
District,  Yuba  County. 

"Article  XII — Any  person  at  any  time  feeling  aggrieved 
by  any  of  the  above  Rules  and  Regulations  and  desirous  to 
have  said  Rules  and  Regulations  altered  or  amended,  may 
call  a  meeting  of  the  miners  by  giving  at  least  three  days' 
notice  of  such  intention  by  placing  up  at  least  two  notices 
on  the  most  jniblic  places  in  Gibsonville." — Regulations,  Gib- 
sonvillc  District,  Sierra  County. 

"Article  XII — No  amendments  or  alteration  shall  be  made 
to  these  laws  unless  a  meeting  of  the  miners  of  this  district 
be  called  by  notice  posted  in  three  public  places  within  this 
district,  at  least  before  such  meeting  takes  place  five  days." 
— El  Dorado  (Mud  Springs}  District,  El  Dorado  County. 


Historical  Sketch  of  the  Mining  Law  in  California.          31 

One  of  the  gems  in  the  collection  is  to  be  found  among 
the  regulations  of  the  Mariposa  District,  in  1851 : 

"Resolved,     That  we  consider  all  rights  claimed  in  quartz 
veins,  subject  to  the  debts  of  the  claimants  or  owners,  as  ab- 
solutely as  may  be  other  property. 

"Resolved,  .  .  .  That  a  copy  be  furnished  to  our  Sena- 
tors and  Representatives  in  Congress. 

"Resolved,  That  for  the  full  and  faithful  maintenance  of 
these  Rules  and  Regulations  in  our  county  of  Mariposa  we 
sacredly  pledge  our  honors  and  our  lives." 

The  humor  of  the  last  resolution  consists  not  so  much 
in  the  bombastic  yet  earnest  imitation  of  the  Declaration  of 
Independence  as  in  the  stern  sincerity  of  the  omitted  word. 
The  only  reason  they  did  not  pledge  their  fortunes  was  be- 
cause they  did  not  have  any!  Fortunes  were  what  they  were 
hunting. 

In  some  districts  the  penal  regulations  were  no  less  ex- 
plicit than  those  for  the  location,  holding  and  working  of 
claims: 

"Article  XII — Any  person  who  shall  steal  a  mule,  or  other 
animal  of  draught  or  burden,  or  shall  enter  a  tent  or  dwelling 
and  steal  therefrom  gold-dust,  money,  provisions,  goods,  or 
other  articles  amounting  in  value  to  one  hundred  dollars  or 
over,  shall,  on  conviction  thereof,  be  considered  guilty  of 
felony,  and  suffer  death  by  hanging. 

"Article  XIII — Should  any  person  wilfully,  maliciously  and 
premeditatedly  take  the  life  of  another,  on  conviction  of  mur- 
der, he  shall  suffer  death  by  hanging. 

"Article  XIV — Any  person  convicted  of  stealing  tools, 
clothing  or  other  articles,  of  less  value  than  one  hundred 
dollars,  shall  be  punished  and  disgraced  by  having  his  head 
and  eyebrows  close  shaved  and  shall  leave  the  encampment 
within  twenty-four  hours." — Jacksonville  District,  1850, 
Tuolumne  County. 

One  of  the  most  instructive  records  of  miners'  meetings 
is  that  of  the  meeting  held  Dec.  13,  1853,  m  tne  Weaver- 
ville  District,  in  Trinity  County: 

"Dr.  Ware  explained  the  object  of  the  meeting  in  a  few 
pertinent  remarks.  He  said  that  McDermott  told  him  on 
yesterday  that  unless  he  gave  up  one-half  of  the  water  in  the 
creek  aforesaid,  that  he,  McDermott,  would  take  a  body  of 
men  and  take  the  water  by  force  of  arms  and  hold  the  same 
until  he  and  his  men  were  whipped  off  the  ground.  His  party 
as  above  mentioned  have  taken  possession  of  the  water,  and 
are  holding  it  by  force  of  arms.  In  this  dilemma  Dr.  Ware 
calls  upon  his  fellow-miners  to  assist  him  in  defending  his 
rights,  agreeable  to  the  old  miners'  laws.  They  said  that  this 
was  a  serious  affair,  but  they  were  willing  to  defend  the  old 
and  established  miners'  laws  and  the  right." 


32  History  of  the  Bench  and  Bar  of  California. 

A  committee  of  five  was  appointed  to  investigate  the 
nature  of  the  grievance  and  examine  the  law  on  the  subject, 
and  a  recess  taken.  The  minutes  then  proceed : 

"Pursuant  to  adjournment  meeting  met  at  i  o'clock,  were 
called  to  order  by  the  chairman,  Mr.  Cameron.  Committee 
reported  as  follows,  having  thoroughly  investigated  the  laws 
and  customs  of  the  miners  of  Weaver:  We  fully  concur  in 
the  opinion  that  Dr.  Ware  is  fully  entitled  to  all  the  water 
in  West  Weaver,  except  four  torn-heads,  which  is  allowed 
for  the  bed  of  the  stream ;  also  that  the  burning  of  his  reser- 
voir, and  the  destruction  of  his  dam  and  other  property  and 
the  taking  of  his  water  from  his  race  by  force  of  arms  are 
malicious  acts,  and  should  not  be  submitted  to  by  those  who 
are  in  favor  of  law  and  order. 

"On  motion,  the  report  was  received  and  the  committee 
discharged. 

"On  motionj  it  was  'Resolved,  That  we  assist  Dr.  Ware 
in  turning  the  water  into  his  race  and  that  we  sustain  him 
to  the  last  extremity  in  keeping  it  in  the  race.' 

"On  motion,  the  meeting  then  adjourned  for  the  purpose  of 
carrying  this  resolution  into  effect." 

At  this  interesting  point  the  minutes  end,  and  the  reader 
is  left  to  imagine  what  usually  takes  place  when  an  irresisti- 
ble force  meets  an  immovable  object. 

As  a  sample  of  regulations  concerning  the  location  of 
quartz  claims,  that  adopted  for  all  the  quartz  mines  in  Nevada 
County,  Dec.  20,  1852,  will  suffice: 

"Article  II — Each  proprietor  of  a  quartz  claim  shall  here- 
after be  entitled  to  one  hundred  feet  on  a  quartz  ledge  or  vein ; 
and  the  discoverer  shall  be  allowed  one  hundred  feet  addi- 
tional. Each  claim  shall  include  all  the  dips,  angles  and  varia- 
tions of  the  vein." 

In  other  counties  the  length  of  a  claim  was  usually 
greater  than  in  Nevada,  but  the  dips,  spurs,  angles  and  varia- 
tions always  went  with  the  ledge,  and  if  not  expressly  set 
forth  in  the  rules  and  regulations  \vere  always  included  in 
the  "customs"  of  the  district.  This  was  also  true  of  the  use 
of  sufficient  surface  ground  for  the  convenient  working  of 
the  claim. 

THE  DOCTRINE  OF  "CUSTOMS." 

This  doctrine  of  "customs,"  in  its  technical  sense,  as  ap- 
plied to  early  California  mining  operations,  must  not  be  con- 
fused with  the  written  "rules  and  regulations"  of  miners. 
Though  very  serviceable  to  the  early  miner  for  obvious  rea- 


Historical  Sketch  of  the  Mining  Law  in  California.         33 

sons,  its  possible  and  actual  misuse  at  a  later  day  often  came 
back  to  plague  him.  ''These  (customs),"  says  Mr.  Yale, 
"grow  up  by  self-creation,  and  are  not  the  subjects  of  in- 
vention or  provision.  They  may  be  superseded  when  once 
observed  as  obligatory,  and  the  customs  of  one  district  may 
have  controlling  force  in  another.  They  are  not  the  ancient 
customs  of  the  common  law,  which,  to  have  force,  must  be 
immemorial,  merely  traditional,  and  not  originating  within 
living  memory.  But  they  are  the  usages  which  grow  out  of 
the  regulations  by  practice,  are  appurtenant  to  them,  and 
must  be  regarded  and  enforced  as  an  inherent  part  of  them, 
as  explaining,  enlarging  and  defining  them.  Their  force  is 
greater  because  they  are  within  living  memory,  and  as  no 
generation  has  elapsed  since  they  have  existed,  are  as  ancient 
as  circumstances  will  conveniently  admit."  Their  growth  in 
a  community  where  pen,  pencil  and  paper  were  not  exactly 
implements  of  mining,  where  everyone  knew  his  neighbor, 
and  where  everyone  knew  what  transpired  in-  camp  each  day, 
was  perfectly  natural;  and  their  recognition  by  courts  into 
whose  presence  the  rules  and  regulations  of  the  miners  them- 
selves came  in  the  guise  of  custom,  in  the  generic  sense  of 
the  word,  was  equally  natural. 

STATE  LEGISLATIVE  RECOGNITION. 

In  1851  Stephen  J.  Field,  then  a  member  of  the  Assembly 
from  Yuba  County,  introduced  into  the  legislature  and 
had  passed  what  is  commonly  known  as  the  Practice  Act, 
section  621  of  which  (since  re-enacted  as  section  748  of  the 
Code  of  Civil  Procedure)  was  as  follows :  "In  actions  re- 
specting mining  claims,  proof  shall  be  admitted  of  the  cus- 
toms, usages  or  regulations  established  and  in  force  at  the 
bar  or  diggings  embracing  such  claims;  and  such  customs, 
uses  or  regulations,  when  not  in  conflict  with  the  constitution 
and  laws  of  this  State,  shall  govern  the  decision  of  the 
action."  This  was  the  first  statute*  to  take  notice  of  these 
customs,  usages  and  regulations,  and  its  enactment  recog- 
nized and,  in  a  sense,  adopted  them  as  the  common  law  of 
mines  and  mining  in  California. 


34  History  of  the  Bench  and  Bar  of  California. 

The  act  of  April  13,  1860,  relating  to  the  conveyance  of 
mining  claims,  also  expressly  recognizes  the  "lawful  local 
rules,  regulations  or  customs  of  the  mines  in  the  several  min- 
ing districts  in  this  State."  This  is  the  only  other  statutory 
recognition  of  these  rules  and  customs  in  California  before 
the  federal  mining  law  of  1866. 

"These  usages  and  customs,"  said  Chief  Justice  Sander- 
son, in  1864,  in  construing  Section  621  of  the  Practice  Act, 
in  the  case  of  Morton  vs.  Solambo  Copper  Mining  Co.,  "were 
the  fruit  of  the  times,  and  demanded  by  the  necessities  of 
communities  who,  though  living  under  common  law,  could 
find  therein  no  clear  and  well-defined  rules  for  their  guidance 
applicable  to  the  new  conditions  by  which  they  were  sur- 
rounded, but  were  forced  to  depend  upon  remote  analogies 
of  doubtful  application  and  unsatisfactory  results.  Having* 
received  the  sanction  of  the  legislature,  they  have  become  as 
much  a  part  of  the  law  of  the  land  as  the  common  law  itself, 
which  was  not  adopted  in  a  more  solemn  form." 

STATE  SUPREME  COURT  RECOGNITION  AND  CONSTRUCTION. 

The  State  courts  gave  full  recognition  to  the  rules,  regu- 
lations and  customs  of  miners,  and  a  large  body  of  our  law 
is  made  up  of  the  judicial  interpretation  and  application  of 
these  rules  and  customs,  a  summary  of  the  chief  points  of 
which  will  not  be  amiss.  The  elastic  construction  given  to 
these  rules  and  regulations  and  the  sympathetic  construction 
given  to  the  customs  and  usages  were  in  accord  with  the 
spirit  of  their  creation,  and  effectively  promoted  justice  in 
the  Arcadian  days;  but  some  of  the  principles  then  laid  down 
became  in  later  days,  under  other  circumstances,  a  very  Pan- 
dora's box  of  troubles. 

To  have  the  force  of  law,  a  regulation  must  be  in  force 
at  the  time  of  the  location.  It  does  not,  like  a  statute,  ac- 
quire validity  by  the  mere  enactment,  but  from  the  custom- 
ary obedience  and  acquiescence  of  miners  following  its  enact- 
ment. It  likewise  becomes  void  by  disuse;  this  disuse,  how- 
ever, must  be  general;  it  is  not  sufficient  that  the  rule  has 


Historical  Sketch  of  the  Mining  Law  in  California.          35 

been  disregarded  or  violated  by  a  few  persons.  Whether 
it  has  fallen  into  disuse  is  a  question  of  fact,  and,  therefore, 
must  go  to  the  jury. 

Where  a  regulation  has  fallen  into  disuse,  a  custom  rea- 
sonable in  itself  and  generally  observed,  though  contrary 
to  the  regulation,  may  be  proved.  But  the  written  rules  are 
presumed  to  be  in  force,  and  proof  of  a  contrary  custom  must 
be  clear.  The  existence  of  mining  regulations  is  a  fact,  and 
must  be  proved  as  a  fact.  Judicial  notice  will  not  be  taken 
of  them.  Upon  the  person  relying  on  them  lies  the  burden 
of  proving  them.  This  is  done  by  producing  the  original 
rules  when  in  writing.  When  it  is  proved  that  the  rules 
were  adopted  and  recognized,  they  become  admissible  in 
evidence.  The  fact  that  the  meeting  at  which  they  were 
adopted  was  held  upon  a  day  different  from  that  named  in 
the  notice  thereof,  does  not,  in  the  absence  of  fraud,  render 
them  inadmissible.  And  an  alteration  in  one  article  of  the 
regulations  after  their  adoption  does  not  change  the  legal 
effect  of  the  other  articles. 

When  the  written  regulations  are  deposited  with  some 
authorized  officer,  or  recorded  in  his  office,  they  may  not 
be  proved  by  parol  evidence.  Other  evidence,  however,  be- 
sides proof  of  the  written  record  or  of  the  acts  of  a  miners' 
meeting  is  admissible  as  tending  to  prove  the  existence  of 
a  particular  rule.  This  may  be  done  by  establishing  a  cus- 
tom or  usage  in  the  district.  The  custom  of  recording  claims 
in  a  district,  while  not  proving  absolutely  the  existence  of  a 
rule  requiring  such  a  record,  tends  to  establish  it.  So  on  a 
subject  as  to  which  the  written  rules,  when  proven,  are 
silent,  a  custom  prevailing  in  the  district  may  be  proved;  but 
regulations  or  customs  of  another  district  are  not  admissible 
to  vary  such  a  custom  or  the  written  rules. 

The  admissibility  of  mining  regulations  is  not  affected 
by  the  shortness  of  the  time  that  they  have  been  in  force. 
The  common  law  rule  as  to  customs  has  no  application  on 
this  point.  A  single  extract  from  the  written  rules  of  a 
district  may  not  be  proved;  the  whole  body  of  rules  of  a 
district  must  be  offered  in  evidence. 


36  History  of  the  Bench  and  Bar  of  California. 

When  regulations  have  been  proved,  their  construction, 
like  that  of  other  writings,  is  for  the  court.  But  where  good 
faith  is  shown,  a  substantial  compliance  with  them  is  suffi- 
cient. There  is  a  distinction  between  the  local  rule  made 
by  a  few  miners  within  a  district  and  a  mining  regulation 
enacted  by  the  whole  district,  or  a  custom  in  universal  force 
throughout  the  district.  The  former  is  not  binding  upon  the 
locator,  unless  he  had  actual  notice  of  its  existence  or  as- 
sisted in  its  enactment. 

Barringer  and  Adams  on  Mines,  pp.  281-190,  290. 

In  an  action  for  possession  of  a  mining  claim,  where 
plaintiff  relied  upon  a  location  under  certain  written  rules 
adopted  by  the  miners  of  the  district,  which  contained  no 
requirements  that  notices  should  be  posted  on  the  claims  at 
the  time  of  the  location,  defendant  may  prove  a  custom  in 
the  district  requiring  such  posting  of  notices.  No  distinction 
is  made  by  the  statute  (Practice  Act,  sec.  621)  between  the 
effect  of  a  "custom"  or  "usage,"  the  proof  of  which  must 
rest  in  parol,  or  a  "regulation,"  which  may  be  adopted  at  a 
miners'  meeting  and  embodied  in  a  written  local  law.  The 
custom  or  regulation  must  not  only  be  established,  but  must 
be  in  force.  A  custom  reasonable  in  itself  and  generally 
observed  will  prevail  as  against  a  written  mining  law  which 
has  fallen  into  disuse.  Whether  the  law  is  in  force  at  any 
given  time  is  for  the  jury. 

Harvey  vs.  Ryan,  42  Cal.  626. 


FEDERAL  SUPREME  COURT  RECOGNITION. 

The  Supreme  Court  of  the  United  States  gave  full  recog- 
nition to  the  binding  force  of  the  local  rules,  regulations, 
usages  and  customs  before  the  sanction  of  federal  statutory 
enactment,  and  to  the  doctrine  that  they  constitute  the  Amer- 
ican common  law  of  mines. 

Sparrow  vs.  Strong,  3  Wall.  97,  decided  in  1865. 

Jennison  vs.  Kirk,  98  U.  S.  453,  decided  in  1878. 


Historical  Sketch  of  the  Mining  Law  in  California.          37 

EFFECT  OF  UNCERTAINTY  OF  TENURE. 

The  rules,  regulations  and  customs  of  the  miners  were 
the  work  of  men  who  were  prospectors,  and  were  admirably 
adapted  for  the  mining  operations  that  called  them  into 
being.  Each  man  and  his  partner  or  partners  worked  their 
own  claim.  When  the  early  placers  were  worked  out,  how- 
ever, and  the  development  of  the  mining  industry  demanded 
not  so  much  accessibility  to  the  public  domain  as  capital  for 
the  successful  exploitation  of  quartz  mines,  security  of  title 
and  a  declaration  of  federal  policy  with  reference  to  the  pub- 
lic mineral  lands  -became  paramount.  The  uncertain  char- 
acter of  the  tenure  of  the  land,  too,  reacted  upon  the  mining 
population,  made  their  future  uncertain  and  shifty,  and  pre- 
vented the  home-building  so  essential  to  the  settling  up  and 
development  of  the  mining  sections  of  the  State.  "Their 
enterprises,"  says  Ross  Browne,  "generally  were  undertaken 
for  the  purpose  of  making  the  most  profit  in  a  brief  time. 
There  was  no  proper  care  for  a  distant  future;  and  without 
such  care  no  society  is  sound,  no  State  truly  prosperous.  If 
a  claim  could,  by  hastily  washing,  be  made  to  pay  $10  per 
clay  to  the  hand  for  three  months,  or  $6  for  three  years  by 
careful  washing,  the  hasty  washing  was  preferred.  If  a  fer- 
tile valley  that  would  have  yielded  a  revenue  of  $5  per  acre 
for  century  after  century  to  a  farmer  could  be  made  to  yield 
$5  per  day  to  a  miner  for  one  summer,  its  loam  was  washed 
away,  and  a  useless  and  ugly  bed  of  gravel  left  in  its  place. 
The  flumes,  the  ditches,  the  dwellings,  the  roads  and  the 
towns  were  constructed  with  almost  exclusive  regard  to  im- 
mediate wants.  *  *  *  The  claims  were  made  small,  so 
that  everybody  should  have  a  chance  to  get  one;  but  the 
pay-dirt  was  soon  exhausted,  and  then  there  must  be  a  move. 
In  such  a  state  of  affairs  miners  generally  could  not  send  for 
their  families  or  make  elegant  homes.  Living  alone  and 
lacking  the  influences  and  amusements  of  home-life,  they 
became  wasteful  and  wild.  Possessing  no  title  to  the  land, 
they  did  nothing  to  give  it  value,  and  were  ready  to  abandon 
it  at  any  moment.  The  farmers,  merchants,  and  other  fixed 


38  History  of  the  Bench  and  Bar  of  California. 

residents  of  the  mining  counties  were  agitated  and  fright- 
ened nearly  every  year  by  the  danger  of  migration  of  the 
miners  to  some  distant  place.  One  year  it  is  Peru;  another 
it  is  British  Columbia,  Idaho,  Reese  River,  Pahranagat  or 
Arizona;  and  it  may  next  be  Brazil,  Liberia,  or  Central 
Africa,  for  all  we  know." 


EXECUTIVE  RECOMMENDATIONS  FOR  CONGRESSIONAL  ACTION. 

Meanwhile  congress  steadily  pursued  its  policy  of  "gen- 
erous inaction."  The  great  battle  of  whether  California 
should  be  admitted  as  a  slave  or  a  free  state  had  to  be 
fought  out,  and  all  things  else  had  to  wait.  It  took  longer 
to  admit  California  into  the  Union  than  to  fight  the  Mexican 
War.  The  executive  branches  of  the  government,  however, 
never  lost  sight  of  the  necessity  of  some  definite  federal  legis- 
lative action. 

On  December  4,  1849,  President  Taylor,  in  his  inaugural 
message,  after  stating  that  he  thought  the  establishment  of 
a  branch  mint  in  California  would  afford  facilities  to  those 
engaged  in  mining  "as  well  as  to  the  government  in  the  dis- 
position of  the  mineral  lands,"  says: 

"In  order  that  the  situation  and  character  of  the  princi- 
pal mineral  deposits  in  California  may  be  ascertained,  I 
recommend  that  a  geological  and  mineralogical  explora- 
tion be  connected  with  the  linear  surveys,  and  that  the  min- 
eral lands  be  divided  into  small  lots  suitable  for  mining,  and 
be  disposed  of,  by  sale  or  lease,  so  as  to  give  our  citizens 
an  'opportunity  of  procuring  a  permanent  right  of  property 
in  the  soil.  This  would  seem  to  be  as  important  to  the  suc- 
cess of  mining  as  of  agricultural  pursuits." 

These  recommendations,  so  simple  and  so  just,  were, 
however,  not  the  burden  of  the  official  report  of  Mr.  Ewing, 
the  Secretary  of  the  Interior,  who  had  evidently  had  some 
smattering  of  the  Spanish  code  of  mining,  and  according  to 
whom  the  division,  disposition  and  management  of  the  mines 
would  require  much  detail.  It  was  due  to  the  nation,  he 


Historical  Sketch  of  the  Mining  Law  in  California.          39 

claimed,  that  this  rich  deposit  of  mineral  wealth  should  be 
made  so  productive,  as,  in  time,  to  pay  the  expense  of  its 
acquisition.  He  advocated  the  expediency  of  the  govern- 
ment furnishing  scientific  aid  and  directions  to  the  lessees 
and  purchasers  of  the  mines  and  establishing  a  mint  in  the 
mines,  so  that  the  gold  collected  could  be  delivered  into 
the  custody  of  an  officer  of  the  mint,  and  out  of  the  amount 
so  collected  and  deposited  a  percentage  could  be  deducted, 
and  the  balance  paid  to  the  miner  in  coin,  stamped  bullion, 
or  in  drafts  on  the  treasury,  at  his  option.  "The  gold  in  the 
mine,  after  it  is  gathered,  until  brought  into  the  mint,  should 
be  and  remain  the  property  of  the  United  States." 

Senator  Fremont,  five  days  after  the  admission  of  Cali- 
fornia into  the  Union,  introduced  the  first  federal  mining 
bill  concerning  the  public  lands  of  the  new  acquisition.  The 
bill  was  a  complicated  one,  and,  in  principle,  contemplated 
the  ganting  of  permits,  by  agents  appointed  by  the  govern- 
ment, to  work  mines  of  limited  and  specified  quantities,  upon 
the  payment  of  a  stipulated  sum.  The  bill  passed  the  Senate, 
but  failed  of  passage  in  the  House.  S£nator_JF>1^h;  chairman 
ojrthe  committee  on  public  lands,  in  the  course  of  the  debate 
on  the^Fremont  bill,  offered_aj3ubstitute  which  championed 
the  principles  of  free  mining,  butTt  was  defeated  in  the  Sen- 
_ateT  Both  in  the  permit  to  be  obtained  under  *  the  .bremonT 
bill,  and  in  the  land  to  be  acquired  under  the  Felch  bill,  a 
placer  was  limited  to  thirty  feet  square,  and  a  quartz  mine  to 
two  hundred  and  ten  feet  square,  the  lines  to  be  cardinal 
points. 

President  Taylor  died  in  the  fall  of  1850,  and  on  Decem- 
ber 2,  1850,  President  Fillmore,  in  his  message  to  Congress, 
said :  "I  also  beg  leave  to  call  your  attention  to  the  pro- 
priety of  extending  at  an  early  day  our  system,  of  land  laws, 
with  such  modifications  as  may  be  necessary,  over  the  State 
of  California  and  the  territories  of  Utah  and  New  Mexico. 
The  mineral  lands  of  California  will,  of  course,  form  an  ex- 
ception to  any  general  system  which  may  be  adopted.  Vari- 
ous methods  of  disposing  of  them  have  been  suggested.  I 


40  History  of  the  Bench  and  Bar  of  California. 

was  at  first  inclined  to  favor  the  system  of  leasing,  as  it 
seemed  to  promise  the  largest  revenue  to  the  government, 
and  to  afford  the  best  security  against  monopolies;  but  fur- 
ther reflection  and  our  experience  in  leasing  the  lead  mines 
and  selling  lands  upon  credit,  have  brought  my  mind  to  the 
conclusion  that  there  would  be  great  difficulty  in  collecting 
the  rents,  and  that  the  relation  of  debtor  and  creditor  be- 
tween the  citizens  and  the  government  would  be  attended 
with  many  mischievous  consequences.  I  therefore  recom- 
mend that  instead  of  retaining  the  mineral  lands  under  the 
permanent  control  of  the  government,  they  be  divided  into 
small  parcels  and  sold,  under  such  restrictions  as  to  quantity 
and  time  as  will  insure  the  best  price  and  guard  most  effec- 
tually against  combinations  of  capitalists  to  obtain  monopo- 
lies." The  first  glimmer  of  congressional  action  with  reference 
to  the  mineral  lands  in  California  was  by  the  Act  of  March 
3,  1853,  "for  the  survey  of  public  lands  in  California,  the 
granting  of  pre-emption  rights  therein,  and  for  other  pur- 
poses," directing  that  "none  other  than  township  lines  shall 
be  surveyed  where  the  lands  are  mineral  or  are  deemed  unfit 
for  cultivation,"  excluding  in  express  terms  "mineral  lands" 
from  the  pre-emption  act  of  September  4th,  1841,  and  further 
interdicting  "any  person"  from  obtaining  "the  benefits  of 
this  act  by  a  settlement  or  location  on  mineral  lands." 

The  Secretary  of  the  Interior,  Caleb  B.  Smith,  in  his 
annual  report  for  1861  (The  Public  Domain,  page  318), 
called  the  attention  of  Congress  to  the  subject  in  the  follow- 
ing words : 

"The  valuable  and  extensive  mineral  lands  owned  by  the 
government  in  California  and  New  Mexico  have  hitherto 
produced  no  revenue.  All  who  chose  to  do  so  have  been 
permitted  to  work  them  without  limitation.  It  is  believed 
that  no  other  government  owning  valuable  mineral  lands  has 
ever  refused  to  avail  itself  of  the  opportunity  of  deriving 
a  revenue  from  the  privilege  of  mining  such  lands.  They 
are  the  property  of  the  whole  people,  and  it  would  be  ob- 
viously just  and  proper  to  require  those  who  reap  the  ad- 


WNIVERSJT 

Historical  Sketch  oj  the  Mining  Law  in  California^ 

vantages  of  mining  them  to  pay  a  reasonable  amount  as  a 
consideration  of  the  advantages  enjoyed." 

The  Commissioner  of  the  General  Land  Office,  in  his 
annual  report  of  1862  (The  Public  Domain,  page  318),  after 
a  review  of  the  area  of  the  precious  metal  bearing  territory 
and  the  yield  from  the  mines,  gave  the  following  opinion : 

"An  immense  revenue  may  readily  be  obtained  by  sub- 
jecting the  public  mines  either  to  lease  under  quarterly  pay- 
ments or  quarterly  tax  as  seigniorage  upon  the  actual  product, 
under  a  well-regulated  'and  efficient  system,  which  would 
stimulate  the  energies  of  miners  and  capitalists  by  securing 
to  such  classes  an  undisputed  interest  in  localities  so  speci- 
fied, and,  when  the  conditions  as  to  payment  for  the  usu- 
fruct are  complied  with,  for  unlimited  periods,  and  while 
effecting  this  beneficial  result  to  them  would  relieve  the 
necessities  of  the  Republic." 

In  1863,  the  Commissioner  of  the  General  Land  Office 
again  called  attention  to  the  mineral  lands  (The  Public  Do- 
main, pages  318-319),  recommending  legislation  for — "open- 
ing the  mines  and  minerals  of  the  public  domain,  the  prop- 
erty of  the  nation,  to  the  occupancy  of  all  loyal  citizens,  sub- 
ject, as  far  as  compatible  with  moderate  seigniorage,  to  ex- 
isting customs  and  usages,  conceding  to  the  discoverer  for 
a  small  sum  a  right  to  one  mine,  placer  or  lead  (quartz),  with 
a  pre-emptive  right  in  the  same  district  to  an  additional 
claim,  both  to  be  held  for  the  term  of  one  year,  for  testing 
the  value."  Collectors  of  internal  revenue  were  to  be  the 
collectors  o>f  the  royalty. 

In  his  message  of  December  6,  1864,  President  Lincoln 
called  the  attention  of  Congress  to  the  mineral  lands : 

"As  intimately  connected  with  and  promotive  of  this  ma- 
terial growth  of  the  nation,  I  ask  the  attention  of  Congress 
to  the  valuable  information  and  important  recommendations 
relating  to  the  public  lands  .  .  .  and  mineral  discov- 
eries contained  in  the  report  of  the  Secretary  of  the  Interior, 
which  is  herewith  transmitted."  ^  »u^x>-~v  ^L  "tLvJL^^ 

The  Commissioner  of  the  GEfferalXandfe^e,  in  his 
report  for  1865,  after  referring  to  the  fact  that  the  organiza- 


42  History  of  the  Bench  and  Bar  of  California. 

tion  of  a  bureau  of  mining  was  recommended  in  his  last  an- 
nual report,  and  stating  that  there  can  be  no  sufficient  reason 
for  withholding  these  mineral  lands  from  the  market  (The 
Public  Domain,  in  1883,  page  319),  says: 

"Congress  has  not  legislated  with  a  view  to  securing  an 
income  from,  the  product  of  the  precious  metals  from  the 
public  domain.  It  is  estimated  that  two  or  three  hundred 
thousand  able-bodied  men  are  engaged  in  such  mining  oper- 
ations on  the  public  lands,  without  authority  of  law,  who  pay 
nothing  to  the  government  for  the  privilege,  or  for  perma- 
nent possession  of  property  worth,  in  many  instances,  mil- 
lions to  the  claimants. 

"The  existing  financial  condition  of  the  nation  obviously 
requires  that  all  our  national  resources  and  the  product  of 
every  industrial  pursuit,  should  contribute  to  the  payment 
of  the  public  debt.  The  wisdom  of  Congress  must  decide 
whether  the  public  interest  would  be  better  promoted  by  a 
sale  in  fee  of  these  mineral  lands,  or  by  raising  a  revenue 
from  their  annual  product." 

In  the  annual  report  of  the  Secretary  of  the  Treasury  for 
the  year  1865,  the  substitution  of  an  absolute  title  in  fee 
for  the  indefinite  possessory  rights  or  claims  under  which 
the  mines  were  held  by  private  parties  was  earnestly  recom- 
mended : 

"The  attention  of  Congress  is  again  called  to  the  impor- 
tance of  early  and  definite  action  upon  the  subject  of  our 
mineral  lands,  in  which  subject  are  involved  questions  not 
only  of  revenue,  but  social  questions  of  a  most  interesting 
character.  Copartnership  relations  between  the  government 
and  the  miners  will  hardly  be  proposed,  and  a  system  of 
leasehold,  (if  it  were  within  the  constitutional  authority  of 
Congress  to  adopt  it,  and  if  it  were  consistent  with  the  char- 
acter and  genius  of  our  people,)  after  the  lessons  which  have 
been  taught  of  its  practical  results  in  the  lead  and  copper 
districts,  cannot  of  course  be  recommended. 

"After  giving  the  subject  as  much  examination  as  the 
constant  pressure  of  official  duties  would  permit,  the  Secre- 
tary has  come  to  the  conclusion  that  the  best  policy  to  be 


Historical  Sketch  of  the  Mining  Law  in  California.          43 

pursued  with  regard  to  these  lands  is  the  one  which  shall 
substitute  an  absolute  title  in  fee  for  the  indefinite  possessory 
rights  or  claims  now  asserted  by  miners.  The  right  to  obtain 
'a  fee  simple  to  the  soil'  would  invite  to  the  mineral  districts 
men  of  character  and  enterprise;  by  creating  homes  (which 
will  not  be  found  where  title  to  property  cannot  be  secured), 
it  would  give  permanency  to.  the  settlements,  and,  by  the 
stimulus  which  ownership  always  produces,  it  would  result 
in  a  thorough  and  regular  development  of  the  mines. 

"A  bill  for  the  subdivision  and  sale  of  the  gold  and  silver 
lands  of  the  United  States  was  under  consideration  by  the 
last  Congress,  to  which  attention  is  respectfully  called.  If 
the  enactment  of  this  bill  should  not  be  deemed  expedient, 
and  no  satisfactory  substitute  can  be  reported  for  the  sale 
of  these  lands  to  the  highest  bidder,  on  account  of  the  pos- 
sessory claims  of  miners,  it  will  then  be  important  that  the 
policy  of  extending  the  principle  of  preemption  to  the  min- 
eral districts  be  considered.  It  is  not  material,  perhaps,  how 
the  end  shall  be  attained,  but  there  can  be  no  question  that  it 
is  of  the  highest  importance  in  a  financial  and  social  point 
of  view,  that  ownership  of  these  lands,  in  limited  quantities 
to  each  purchaser,  should  be  within  the  reach  of  the  people 
of  the  United  States,  who  may  desire  to  explore  and  develop 
them." 

FIRST  FEDERAL  LEGISLATIVE  RECOGNITION. 

No  action  by   Congress  even  indirectly  recognized  the    j*^' 
conditions  under  which  the  miners  had  taken  possession  of 
the  mines  until  the  Act  of  February  27,  1865,  providing  for 
a  District  and  Circuit  Court  for  the  district  of  Nevada,  the 
ninth  section  of  which  provides  as  follows : 

"No  possessory  action  between  individuals  in  any  of  the 
courts  for  the  recovery  of  a  mining  title,  or  for  damages  to 
any  such  title,  shall  be  affected  by  the  fact  that  the  paramount 
title  to  the  land  on  which  such  mines  lie  is  in  the  United 
States,  but  each  case  shall  be  adjudged  by  the  law  of  pos- 


44  History  of  the  Bench  and  Bar  of  California. 

The  only  other  two  instances  before  the  general  law  of 
1866,  where  Congress  recognized  possessory  rights  or  rules 
of  miners,  or  granted  a  fee  in  mineral  lands,  were  local  in 
their  character  and  application;  one  was  section  2  of  the 
Act  of  May  5,  1866,  (14  U.  S.  Stat.  at  Large,  43),  concern- 
ing boundaries  of  the  State  of  Nevada;  and  the  other  was 
the  Act  of  Juy  25,  1866,  (14  U.  S.  Stat.  at  Large,  242),  com- 
monly known  as  the  Sutro  Tunnel  Act. 

INTRODUCTION  OF  LODE  LAW  OF  1 866. 

On  May  28,  1866,  Senator  Conness,  chairman  of  the  com- 
mittee on  mines  and  mining  in  the  United  States  Senate,  re- 
ported back  to  that  body  Senate  bill  No.  257,  entitled  "An 
Act  to  regulate  the  occupation  of  mineral  lands,  and  to  ex- 
tend the  right  of  pre-emption  thereto,"  and  recommended 
the  passage  of  a  substitute..  In  his  report,  he  took  strong 
grounds  against  all  measures  for  the  sale  of  the  mines  to 
the  highest  bidders  and  for  the  taxation  of  those  engaged 
in  working  them.  He  claimed  that  it  was  the  first  duty  of 
Congress  to  set  at  rest  all  doubts  and  apprehensions  affect- 
ing mining  property  by  the  promulgation  of  a  policy  which 
should  give  full  and  complete  protection  to  all  existing  pos- 
sessory rights  upon  liberal  conditions,  with  full  and  complete 
legal  guarantees,  and  which  should  provide  the  most  gener- 
ous conditions  looking  toward  further  explorations  and  de- 
velopments. He  especially  commends  the  features  of  the 
bill  recognizing  the  rules  and  regulations  of  the  miners : 

"Another  feature  of  the  bill  recommended,"  says  the  re- 
port, "is,  that  it  adopts  the  rules  and  regulations  of  the 
miners  in  the  mining  dstricts  where  the  same  are  not  in 
conflict  with  the  laws  of  the  United  States.  This  renders 
secure  all  existing  rights  of  property,  and  will  prove  at  once 
a  just  and  popular  feature  of  the  new  policy.  Those  'rules 
and  regulations'  are  well  understood,  and  form  the  basis  of 
the  present  admirable  system  in  the  mining  regions;  arising 
out  of  necessity,  they  became  the  means  adopted  by  the  peo- 
ple themselves  for  establishing  just  protection  to  all. 


Historical  Sketch  of  the  Mining  Law  in  California.          45 

"In  the  absence  of  legislation  and  statute  law,  the  local 
courts,  beginning  with  California,  recognize  those  'rules  and 
regulations,'  the  central  idea  of  which  was  priority  of  posses- 
sion, and  have  given  to  the  country  rules  of  decision,  so 
equitable  as  to  be  commanding  in  their  national  justice,  and 
to  have  secured  universal  approbation.  The  California  re- 
ports will  compare  favorably,  in  this  respect,  with  the  history 
of  jurisprudence  in  any  part  of  the  world.  Thus  the  miners' 
'rules  and  regulations'  are  not  only  well  understood,  but  have 
been  construed  and  adjudicated  for  now  nearly  a  quarter 
of  a  century.  It  will  be  readily  seen  how  essential  it  is  that 
this  great  system,  established  by  the  people  in  their  primary 
capacities,  and  evidencing  by  the  highest  possible  testimony, 
the  peculiar  genius  of  the  American  people  for  founding  em- 
pire and  establishing  order,  shall  be  preserved  and  affirmed. 
Popular  sovereignty  is  here  displayed  in  one  of  its  grandest 
aspects  and  simply  invites  us  not  to  destroy,  but  to  put  upon 
it  the  stamp  of  national  power  and  unquestioned  authority." 

LEGISLATIVE  HISTORY  OF  THE  BILL. 

The  legislative  history  of  the  passage  of  this  bill,  which, 
after  certain  amendments  went  upon  the  statute-book  as 
the  general  lode  mining  law  of  July  26,  1866,  under  a  very 
anomalous  title,  is  the  history  of  a  battle  royal  in  the  'favor 
of  the  lasting  interests  of  the  Western  gold-producing 
regions.  I  have  taken  the  account  of  it  from  Yale's  valua- 
ble work  on  "Mining  Claims  and  Water  Rights,"  pages  10 
to  12,  but  have  not  had  the  opportunity  to  verify  from 
the  original  official  records  the  account  there  given. 

"The  miners  of  California,"  says  Mr.  Yale,  writing  in 
1867,  "and  the  States  and  Territories  adjacent  thereto,  have 
but  a  very  inadequate  idea  of  the  imminent  peril  in  which 
the  pursuit  in  which  they  are  engaged  was  placed  at  the 
commencement  of  the  Thirty-ninth  Congress.  Two  years 
ago  there  was  a  strong  disposition  in  Congress  and  the  East, 
generally,  to  make  such  a  disposition  of  the  mines  as  would 


46  History  of  the  Bench  and  Bar  of  California. 

pay  the  national  debt.  The  idea  of  relieving  the  nation  of 
the  payment  of  the  enormous  taxes  which  the  war  had  sad- 
dled upon  us  by  the  sale  of  the  mines  in  the  far  distant  Pacific 
Slope,  about  which  few  people  here  have  any  knowledge 
whatever,  was  the  most  popular  that  was  perhaps  ever  started 
— compelling  other  people  to  liquidate  our  obligations,  has 
been  in  all  ages  and  in  all  nations  a  highly  comfortable 
and  popular  proceeding.  There  were  some  at  the  time 
of  which  I  write  who  would  not  be  satisfied  with  the  sale  of 
the  mines.  They  held  that  even  after  the  sale  the  govern- 
ment should  be  made  a  sharer  in  the  proceeds  realized  from 
them.  The  first  bill  on  the  subject  was  introduced  in  the 
Senate  by  Mr.  Sherman,  of  Ohio,  and  in  the  House  by  Mr. 
Julian,  of  Indiana.  Both  of  these  bills  contained  the  most 
odious  features.  Sherman's  bill  went  to  the  committee  on 
public  lands,  of  which  Mr.  Stewart  was  a  member.  After 
much  consideration,  it  was  understood  that  the  committee 
would  report  adversely.  Julian's  bill  received  a  much  more 
favorable  consideration  in  the  House.  In  fact,  the  House 
went  so  far  as  to  pass  a  resolution  endorsing  legislation  sub- 
stantially of  the  character  contemplated  in  Julian's  bill. 
After  much  canvassing,  Mr.  Conness  and  Mr.  Stewart  came 
to  the  conclusion  that  it  was  no  longer  safe  to  act  on  the 
defensive,  and  that  it  was  necessary  to  determine  what  leg- 
islation would  be  acceptable,  and  to  make  a  bold  move  to 
obtain  it.  The  Secretary  of  the  Treasury  was  then  one  of 
the  strongest  advocates  of  the  sale  of  the  mines,  and  ap- 
peared to  be  under  the  impression  that  it  would  yield  a  large 
revenue.  The  movement  thus  far  had  been  encouraged  by 
him,  and  it  was  thought  that  a  partial  success  of  his  views 
would  be  more  satisfactory  to  him  than  an  entire  defeat. 
Mr.  Conness  accordingly  suggested  to  him  to  have  a  bill 
prepared  in  his  department,  which  would  avoid  the  odious 
provisions  of  the  other  two  propositions,  and  get  some 
Senator  to  introduce  it,  assuring  him  that  a  liberal  measure 
would  receive  the  favorable  consideration  of  the  Pacific  del- 
egation. The  result  was  that  the  secretary  had  prepared  the 


Historical  Sketch  of  the  Mining  Law  in  California.          47 

second  bill,  introduced  by  Mr.  Sherman,  which  was  a  great 
gain  on  the  first  bill.  This  bill  went  to  the  committee  on 
mines,  of  which  Mr.  Conness  was  chairman  and  Mr.  Stewart 
a  member.  After  much  discussion,  these  two  Senators  were 
appointed  a  committee  to  draft  a  substitute,  which,  after 
several  weeks  of  close  study,  resulted  in  the  reporting  of  a 
bill  substantially  the  same  as  the  one  which  is  now  the  law. 
At  this  time  it  was  not  expected  that  it  would  be  possible 
to  do  more  than  to  get  a  report  of  the  committee  in  favor  of 
the  measure,  which  it  was  thought  would  be  an  advanced 
affirmative  position,  from  which  the  granting,  selling  or 
other  calamitous  disposition  of  the  mines  could  be  success- 
fully withstood.  Upon  making  the  report,  however,  it  was 
determined  to  put  on  the  boldest  front  possible,  and  try 
and  pass  it  through  the  Senate.  It  came  up  on  the  i8th 
day  of  June,  1866,  and  at  first  had  but  two  warm  advocates — 
its  authors.  The  discussion '  occupied  the  entire  day,  Mr. 
Stewart  supporting  the  bill.  Mr.  McDougall  first  favored 
the  bill,  and  then  made  a  speech  against  it.  Mr.  Williams, 
of  Oregon,  was  opposed  to  all  bills  of  the  kind.  Nesmith 
contented  himself  with  voting  against  it.  Nye  opposed  it, 
and  said  it  would  be  good  policy  to  let  the~"wKole  subject 
alone,  and  not  legislate  upon  it  at  all.  This  speech  left  his 
real  position  somewhat  indefinite.  In  the  course  of  the 
debate,  however,  it  became  manifest  from  the  remarks  of 
Senators  Sherman,  Buckalew  and  Hendricks,  that  the  real 
merits  of  the  bill  were  beginning  to  be  appreciated  by  the 
Senate.  The  two  authors  of  the  bill  congratulated  them- 
selves on  this  sign  of  progress,  and  resolved  to  try  again. 
It  was  called  up  again  on  the  28th  by  Mr.  Stewart,  and  was 
debated  by  Senators  Stewart,  Conness,  Sherman,  Hendricks 
and  others.  After  being  amended  slightly  by  Mr.  Stewart,  the 
bill  passed  the  Senate.  When  it  was  first  introduced,  the 
bill  had  no  friends  in  the  House,  but  after  it  passed  the 
Senate  some  of  the  Pacific  delegation  began  to  regard  it 
favorably.  It  should  have  gone  in  the  House  to  the  com- 
mittee on  mines,  of  which  Mr.  Higby  was  chairman;  but  Mr. 


48  History  of  the  Bench  and  Bar  of  California. 

Julian,  who  is  an  old  member,  and  was  then  chairman  of  the 
committee  on  public  lands,  seized  on  the  bill  at  once,  and 
had  it  transferred  to  his  committee.  Then  the  struggle  came 
to  get  it  out  of  that  committee.  Mr.  Stewart  addressed 
himself  to  the  members  of  it,  and  got  every  one  of  them  but 
Julian,  but  he  was  intractable.  He  wanted  his  bill  to  go 
first,  and  would  not  let  this  supersede  it.  The  House,  too, 
was  canvassed,  and  was  found  to  be  favorably  disposed,  but 
there  was  no  way  of  getting  at  the  bill.  In  the  meantime, 
Higby  had  passed  a  bill  from  the  committee  on  mines  in 
regard  to  ditches.  It  contained  only  three  provisions,  and 
bore  no  resemblance  to  the  bill  in  question,  but  it  related 
to  the  same  subject.  When  this  bill  came  into  the  Senate, 
the  mining  bill  was  tacked  on  as  a  substitute,  and  was  passed. 
It  was  then  sent  back  to  the  House,  and  went  on  the  Speak- 
er's table.  In  that  condition  it  required  a  majority  to  refer 
it.  To  get  this  majority,  Julian  exerted  all  his  strength,  but 
failed.  The  bill  was  passed  in  the  House  without  amend- 
ment, and  became  a  law.  This  accounts  for  its  being  entitled 
'An  Act  granting  the  right  of  way  to  ditch  and  canal-owners 
through  the  public  lands,  and  for  other  purposes.'  I  have 
been  particular  about  hunting  up  all  the  facts  bearing  upon 
this  struggle,  for  the  reason  that  the  bill  evolved  from  it  is 
the  most  important,  so  far  as  California  is  concerned,  that 
has  ever  been  passed  by  Congress.  .  .  .  The  result 
of  the  whole  fight  is  the  grant  of  all  the  mines  to  the  miners, 
with  some  wholesome  regulations  as  to  the  manner  of  hold- 
ing and  working  them,  which  are  not  in  conflict  with  the 
existing  mining  laws,  but  simply  gave  uniformity  and  con- 
sistency to  the  whole  system.  The  escape  from  entire  con- 
fiscation was  much  more  narrow  than  the  good  people  of 
California  ever  supposed.  If  either  of  the  bills  originally 
introduced  had  been  passed,  the  Pacific  States  and  Terri- 
tories would  have  received  a  blow  from  which  they  would 
never  have  recovered.  The  government  could  only  have 
receded  after  the  most  irreparable  and  widespread  damage 
had  been  done." 


Historical  Sketch  of  the  Mining  Law  in  California.         49 

The  passage  of  this  law  was  heralded  by  the  press  of  the 
whole  Pacific  slope  as  the  greatest  legislative  boon  conferred 
upon  it  by  Congress  since  the  admission  of  California  into 
the  Union.  The  passage  of  the  bill  certainly  marked  an 
epoch  in  the  history  of  the  State.  Probably  the  most  just 
and  sensible  comment  upon  it  is  that  of  the  San  Francisco 
Bulletin  in  its  issue  of  July  3ist: 

"No  measure  of  equal  consequence  to  the  material  and, 
we  may  add,  to  the  moral  interests  of  the  Pacific  States, 
was  ever  before  passed  by  Congress.  *  *  *"  The  pas- 
sage of  the  bill,  whatever  defects  it  may  develop  when  more 
critically  examined  and  enforced,  marks  a  change  in  the 
public  land  policy  equal  in  importance  to  the  adoption  of 
the  pre-emption  and  homestead  system;  indeed,  its  practical 
effect  will  be  to  extend  the  now  unquestionable  benefits  of 
that  system  to  the  vast  field  of  the  mineral  regions  which 
have  hitherto  been  largely  excluded  from  those  benefits. 
*  *  *  It  was  one  of  the  greatest  evils  of  the  negative 
policy  of  Congress  regarding  the  mineral  lands  that,  while 
it  prevented  our  own  people  from  acquiring  titles  to  them, 
it  opened  their  treasures  freely  to  the  transient  adventurers 
from  abroad,  who  only  came  to  take  them  away  without 
leaving  any  equivalent.  As  a  measure  calculated  to  give 
homogenity  and  fixedness  to  our  population,  security  to 
titles,  and  encouragement  to  capital  and  labor,  the  new  min- 
ing law  is  full  of  promise.  We  believe  it  will  have  the  effect 
also  to  stimulate  exploration  and  production  in  the  mining 
districts.  Its  good  features  are  apparent;  its  bad  ones  will 
appear  in  time  and  can  be  easily  remedied." 

LODE  LAW  OF  1866. 

The  most  salient  features  of  the  Lode  Law  of  1866  are 
contaned  in  its  first  two  sections: 

"Sec.  i.  That  the  mineral  lands  of  the  public  domain,  both 
surveyed  and  unsurveyed,  are  hereby  declared  to  be  free  and 
open  to  exploration  and  occupation  by  all  citizens  of  the 
United  States,  and  those  who  have  declared  their  intentions 
to  become  citizens,  subject  to  such  regulations  as  may  be  pre- 


50  History  of  the  Bench  and  Bar  of  California. 

scribed  by  law,  and  subject  also  to  the  local  customs  or  rules 
of  miners  in  the  several  mining  districts,  so  far  as  the  same 
may  not  be  in  conflict  with  the  laws  of  the  United  States. 

"Sec.  2.  That  whenever  any  person,  or  association  of  per- 
sons claim  a  vein  or  lode  of  quartz,  or  other  rock  in  place, 
bearing,  gold,  silver,  cinnabar,  or  copper,  having  previously 
occupied  and  improved  the  same  according  to  the  local  cus- 
toms or  rules  of  miners,  in  the  district  where  the  same  is  sit- 
uated, and  having  expended  in  actual  labor  and  improvements 
thereon  an  amount  of  not  less  than  one  thousand  dollars, 
and  in  regard  to  whose  possession  there  is  no  controversy  or 
opposing  claim,  it  shall  and. may  be  lawful  for  said  claimant, 
or  association  of  claimants,  to  file  in  the  local  land  office  a 
diagram  of  the  same,  so  extended  laterally  or  otherwise  as 
to  conform  to  the  local  laws,  customs  and  rules  of  miners, 
and  to  enter  such  tract  and  receive  a  patent  therefor,  granting 
such  mine,  together  with  the  right  to  follow  such  vein  or 
lode,  with  its  dips,  angles,  and  variations,  to  any  depth,  al- 
though it  may  enter  the  land  adjoining,  which  land  adjoining 
shall  be  sold  subject  to  this  condition." 

The  remaining  sections,  for  the  most  part,  prescribe 
methods  for  giving  effect  to  the  -above,  and  in  Section  4  it 
is  provided  that  "the  surveyor-general  may,  in  extending 
the  surveys,  vary  the  same  from  rectangular  form  to  suit 
the  circumstances  of  the  country  and  the  local  rules,  laws  and 
customs  of  miners;  provided,  that  no  location  hereafter  made 
shall  exceed  two  hundred  feet  in  length  along  the  vein  for 
each  locator,  with  an  additional  cairn  for  discovery  to  the 
discoverer  of  the  lode,  with  right  to  follow  such  vein  to  any 
depth,  with  its  dips,  variations  and  angles,  together  with  a 
reasonable  quantity  of  surface  for  the  convenient  working 
.  of  the  same,  as  fixed  by  the  local  rules;  and  provided,  further, 
that  no  person  may  make  more  than  one  location  on  the 
same  ode,  and  no  more  than  three  thousand  feet  shall  be 
taken  in  any  one  claim  by  any  association  of  persons." 

This  law  of  1866  was  more  important  as  marking  an  era 
in  the  land  policy  of  the  government  than  as  an  effective 
means  of  settling  mining  titles.  In  fact,  we  are  sometimes 
tempted  to  believe  that  was  the  only  good  that  came  of  it. 
It  banished  forever  the  specters  of  governmental  licenses, 
7  leases,  taxes  on  industry,  royalties,  and  confiscation.  The 
miner  drew  a  long  breath.  Where  before  he  had  been  legally 
a  trespasser  he  was  now  free  to  explore  and  occupy  the 
public  domain  and  had  a  free  right  to  mine.  All  the  rights 


Historical  Sketch  of  the  Mining  Law  in  California.          51 

which  he  had  acquired  under  his  system  of  local  rules,  regu- 
lations and  customs  were  explicitly  recognized  as  property, 
as  the  possessory  right  to  mine,  and  were  confirmed  to  him. 
The  local  rules,  regulations  and  customs  which  limited,  de- 
fined and  accompanied  all  the  rights  he  claimed  were 
adopted.  And  he  could,  whenever  he  desired,  transform  this 
possessory  right  to  mine  (except  as  to  placers)  into  a  per- 
petual estate  in  the  mineral  lodes  themselves,  together  with 
sufficient  land,  for  the  convenient  working  thereof. 

The  method  provided  for  obtaining  a  patent  was  simple 
enough.  No  provision,  however,  was  made  as  to  how  a  min- 
ing claim  should  be  located,  no  uniform  rule  established 
as  to  what  work  should  be  done  to  hold  possession  of  a  claim. 
Those  matters,  as  well  as  the  amount  of  surface  ground,  were 
to  be  fixed  by  the  local  rules  and  customs.  The  extra-lateral 
right  was  given  without  mention  of  top  of  apex  of  the  vein 
or  lode.  No  mention  was  made  of  end  lines.  Were  any 
needed,  and,  if  so,  how  must  they  be  drawn?  Was  there 
any  relation  between  the  surface  granted  for  working  and 
the  boundaries  of  the  lode?  If  patent  could  issue  for  only 
one  lode,  what  comprised  the  lode?  Ignorance  of  geology 
sometimes  on  the  part  of  the  land  department,  sometimes 
on  the  part  of  the  judiciary,  and  sometimes  on  the  part  of 
the  miner,  had  more  to  do  with  the  confusion  that  came  of 
the  law  of  1866  than  perhaps  any  other  cause. 

ONE-LODE  AND  MANY-LODE  THEORIES. 

What  is  the  lode?  The  fights  between  the  champions  of 
the  one-lode  theory  and  the  many-lode  theory,  both  before 
and  after  the  passage  of  the  act  of  1866,  have  caused  the 
expenditure  of  millions  of  dollars  in  the  most  vexations  liti- 
gation. The  incorporation  of  that  one  word  "lode"  into  the 
statute  of  1866  brought  with  it  all  the  undetermined  con- 
troversies concerning  it.  One  of  the  main  sources  of  the 
lawsuits  was  the  doubt  whether  the  Comstock  lode  had  at 
its  side  a  number  of  branches,  or  whether  it  was  one  of  a 
series  of  independent  and  parallel  lodes  within  a  distance 


52  History  of  the  Bench  and  Bar  of  California. 

of  two  hundred  yards.  The  one-lode  theory  finally  pre- 
vailed. The  definition  of  a  lode  given  in  the  Eureka-Rich- 
mond  case  (4  Sawy.  302),  a  case  involving  the  construction 
of  rights  accruing  under  the  law  of  1866,  is  as  follows:  "We 
are  of  the  opinion  that  the  term  [lode]  as  used  in  the  acts 
of  Congress  is  applicable  to  any  zone  or  belt  of  mineralized 
rock  lying  within  boundaries  clearly  separating  it  from  the 

7  neighboring  rock.  It  includes  *  *  *  all  deposits  of 
mineral  matter  found  through  a  mineralized  zone,  or  belt, 
coming-  from  the  same  source,  impressed  with  the  same 
forms,  and  appearing  to  have  been  created  by  the  same  pro- 
cess." When  the  width  of  the  Mother  Lode  of  California 
varies  from  that  of  a  knife-blade  to  eight  hundred  feet,  and 
more,  we  realize  what  kind  of  an  inconstant  variable  instead 
of  a  straight  line  a  surveyor  has  to  deal  with,  something  of 
which  the  land  department  did  not  seem  to  have  had  the 
slightest  conception. 

Under  section  three  of  the  act  no  patent  could  in  any 
case  issue  for  more  than  one  vein  or  lode.  As  there  was 
nothing  in  the  statute  to  prevent  another  from  locating 
within  a  certain  distance  of  the  original  locator,  there  was 
no  legal  method  of  preventing  the  presence  of  undesirable 
neighbors.  A  blackmailer  might  locate  an  adjacent  outcrop 
of  the  same  lode,  and  the  original  locator  might  have  upon 
his  shoulders  a  suit  involving  all  the  horrors  of  a  one-lode 
and  many-lode  contest.  The  only  alternative  would  be  to 
buy  out  the  subsequent  locator.  The  original  locator  might, 
through  ill-luck,  locate  some  spur  of  a  valuable  lode  and 
thus  attract  to  make  a  location  in  his  immediate  neighbor- 
hood some  one  who  would  otherwise  never  dream  of  locat- 
ing there.  The  latter  might  show  by  underground  workings 
his  to  be  the  lode  proper  and  the  original  location  only  a 
spur,  and  then,  under  some  facile  proof  of  local  rule  or  cus- 
tom giving  him  all  "spurs"  as  well  as  dips,  angles  and  varia- 
tions, oust  the  prospector  but  for  whose  discovery  he  would 
himself  never  have  located.  There  being  no  provision  for 

-T     side  lines,  this  clause  of  the  law  of  1866  was  also  an  open 


Historical  Sketch  of  the  Mining  Law  in  California.          53 

invitation  to  men  with  wealth  and  without  conscience  to 
locate  in  the  immediate  neighborhood  alongside  of  a  valuable 
ledge  located  by  a  man  who  was  poor,  offer  him  their  own 
price  for  his  claim,  and,  if  he  refused  to  accept,  deliberately 
sink  a  shaft  more  or  less  vertical  to  take  what  did  not  belong 
to  them,  and  while  they  were  enriching  themselves  offer  to 
give  up  the  ledge  upon'  the  geological  proof  of  its  owner- 
ship which  the  law  required  and  which  they  knew  was  utterly 
beyond  the  financial  power  of  their  victim  to  supply. 

RELATION   OF   SURFACE   TO   LODE. 

The  law  of  1866  intended  to  carry  out  the  idea  of  the 
early  rules  and  customs  that  the  lode  was  the  principal  thing 
and  the  surface  a  mere  incident.  It  provided,  however,  that 
the  patent  should  issue,  among  other  things,  "upon  the  pay- 
ment to  the  proper  officer  of  five  dollars  per  acre."  That 
word  "acre"  is  the  first  shadow  of  the  cloud  no  bigger  than 
a  man's  hand.  If  the  statute  had  prescribed  that  the  lode 
was  to  be  a  gift,  and  that  five  dollars  an  acre  must  be  paid 
for  any  incident  surface  ground,  or  if  it  had  placed  a  fixed 
price  upon  every  so  many  linear  feet  of  lode,  together  with 
so  many  dollars  an  acre  on  any  incident  surface  ground,  it 
would  have  disclosed  a  more  conscious  purpose  to  keep  the 
two  properties  absolutely  distinct.  But  to  prescribe  that 
the  mine  should  be  paid  for  at  five  dollars  an  acre  was  to 
bring  an  English  common-law  habit  of  thought  unnoticed 
into  a  strange  environment.  Inasmuch  as  there  was  no  rela- 
tionship whatever  between  the  surface  and  the  dimensions 
of  the  lode,  most  of  the  district  rules  had  no  provisions  what- 
ever for  the  size  of  the  tract  of  surface  land  to  be  used.  By 
custom  or  rules  in  most  districts  the  miner  simply  used  what 
surface  he  needed  and  claimed  a  possessory  right  to  only  so 
much  as  he  actually  occupied.  The  land  department  hon- 
estly made  an  attempt  to  carry  out  this  provision  of  the 
law,  and  in  doing  so,  while  itself  showing  an  ignorance  of 
the  topography  of  the  country  in  its  instructions  concerning 
end  lines,  laid  down  a  rule  for  the  computaton  of  areas  that 


54  History  of  the  Bench  and  Bar  of  California. 

would  have  required  every  deputy  mining  surveyor  to  be  an 
expert  geologist.  The  instructions  provided  for  the  estab- 
lishment of  end  lines  at  right  angles  to  the  ascertained  or 
apparent  general  course  of  the  lode,  and  permitted  the  ap- 
plicant to  apply  for  patent  to  a  lode  without  any  inclosing 
surface,  the  estimated  quantity  of  superficial  area  in  such 
cases  being  equal  to  a  horizontal  plane,  bounded  by  the  given 
end  lines  and  the  walls  on  the  side  of  the  lode.  Why  at  right 
angles,  gentlemen?  Simply  to  •  facilitate  an  arithmetical 
calculation. 

As  a  result  of  these  instructions,  patents  were  issued  de- 
scribing a  small  area  of  surface,  which  was  occupied  by  the 
miner  in  connection  with  his  improvements,  within  which 
area  a  portion  of  the  lode  was  included,  the  remainder  of 
linear  feet  claimed  being  indicated  by  a  straight  line  extend- 
ing beyond  the  defined  surface  and  in  the  direction  and  to  the 
extent  claimed.  The  patents  issued  for  the  Idaho  mine  at 
Grass  Valley,  and  the  Maximillian  mine  at  Sutter  Creek 
are  examples.  The  patents,  like  the  statute,  did  not  provide 
for  bounding  planes  at  the  end  of  the  lode, — they  simply 
ignored  the  difficulty.  When  the  courts  of  last  resort  came 
to  construe  these  patents,  however,  they  ignored  the  jealousy 
with  which  the  miner  always  divorced  property  in  the  lode 
from  any  relation  to  the  measurements  of  surface  areas  occu- 
pied, ruled  that  both  end  and  side  surface  lines  were  contem- 
plated by  the  provisions  of  the  law  of  1866,  and  that  the 
miner  under  the  patent  was  not  permitted  to  follow  the  vein 
on  its  strike  beyond  the  surface  boundaries.  The  cloud  had 
already  grown  considerably  larger  than  a  man's  hand.  Under 
this  ruling  the  direction  of  the  surface  end  lines  became  of 
enormous  interest  to  the  locator,  because  through  them  here- 
after were  to  be  drawn  his  end-line  boundary  planes.  The 
miner  had  been  learning  something  of  lode  mining  himself 
in  the  meantime,  and  had  come  to  realize  the  extreme  impor- 
tance to  him  of  the  direction  of  those  end-line  boundary 
planes  as  the  only  means  of  saving  the  "rake"  of  his  ore 
shoots,  while  here  was  a  land  department  placidly  directing 


Historical  Sketch  of  the  Mining  Law  in  California.          55 

its  surveyors  to  establish  end  lines  at  right  angles  to  the 
lode,  in  seeming  utter  geologic  ignorance  of  the  very  exist- 
ence of  rake  or  ore-shoot.  Under  instructions  from  the  land 
department,  and,  in  many  instances,  through  the  ignorance 
of  the  miners  themselves,  patents  were  under  the  law  of  1866 
issued  in  many  a  fantastic  shape,  from  that  of  a  horseshoe 
to  that  of  an  isosceles  triangle,  with  heroic  attempts  in  many 
instances  to  draw  the  end  lines  not  simply  at  right  angles  to 
the  general  course  of  the  lode,  but  at  right  angles  to  the  local 
trend  at  the  respective-  ends  of  the  linear  measurement  on 
the  lode.  In  the  case  of  such  patents  tHe  resultant  extreme 
convergence,  or  unthinkable  divergence  of  the  end  lines  pro- 
duced constrained  the  courts,  although  they  granted  extra- 
lateral  rights  in  all  other  ordinary  cases  of  divergence,  to  deny 
extra-lateral  rights  altogether.  The  same  result  took  place 
where  the  miner,  through  mistake,  as  in  the  case  of  the 
Flagstaff  mine  in  Utah,  made  his  location  across,  instead 
of  with,  the  strike  of  his  lode. 

Under  the  decisions  of  the  courts,  the  extent  of  the  sur- 
face tract  became  of  an  importance  never  dreamed  of  at  the 
time  of  the  passage  of  the  act.  It  is  idle  to  speculate  now 
whether  it  was  ever  necessary  at  all  on  the  part  of  the  courts 
to  establish  any  relation  between  the  surface  and  the  extent 
of  the  lode  in1  order  to  give  the  miner  the  full  benefit  of  the 
terms  of  the  act.  For  good  or  for  evil,  the  judicial  legisla- 
tion had  been  done.  It  is  very  doubtful  whether  the  signifi- 
cance of  what  had  been  done  was  fully  realized  at  the  time. 
The  size  of  the  tract  was  still,  however,  under  the  terms  of 
the  act,  dependent  upon  the  local  rules  and  customs,  and, 
under  the  circumstances,  the  very  facility  with  which  these 
could  be  changed  or  wiped  out  altogether,  which  had  been 
one  of  their  main  recommendations  in  the  days  of  shifting 
placer  and  early  lode  mining,  now  became  one  of  the  chief 
dangers.  Customs  could  be  established  to  affect  the  very 
size  of  the  tracts  asked  to  be  patented.  All  provisions  about 
how  a  mining  claim  could  be  located  at  all  were  still  depend- 
ent on  these  transient  and  unstable  rules  and  customs.  It 


56  History  of  the  Bench  and  Bar  of  California. 

was  one  thing  to  recognize  by  law  the  locations  already  made 
and  the  rights  already  accrued  under  these  rules  and  cus- 
toms operating  naturally,  but  it  was  quite  another  thing  to 
make  them  the  basis  for  future  locations  to  be  recognized 
by  the  law.  "What  are  these  mining  customs  to  which  the 
law  pays  such  sweeping  respect?"  bursts  out  Dr.  Raymond 
in  1869  (Mineral  Resources,  page  221).  'They  are  edicts 
passed  at  twenty-four  hours'  notice  by  mass  meetings  of 
from  five  to  five  hundred  men;  it  requires  no  more  formali- 
ties to  abolish  or  amend  them  than  it  did  to  make  them — a 
notice  posted  on  a  door,  a  'mass  meeting'  next  day,  and  the 
thing  is  done.  The  records  of  titles  are  kept  by  an  officer 
called  the  recorder,  not  known  to  the  law,  nor  answerable 
for  malfeasance  in  office,  except  that  if  he  were  known  to 
tamper  with  the  books  in  his  charge  his  life  might  be  taken 
by  the  party  wronged.  The  records  are  kept  in  a  few  dis- 
tricts in  fire-proof  offices  and  in  suitable  form,  but  more  fre- 
quently in  small  blank-books,  pocket-books,  or  scraps  of 
paper,  stowed  away  under  the  counter  or  behind  the  flour- 
barrel  or  the  stove  of  a  store  or  bar-room." 

NO  UNIFORMITY  OF  CONDITIONS  OF  POSSESSION. 

Moreover,  there  was  no  uniformity  of  the  conditions 
upon  which  possessory  titles  depended,  especially  in  the  mat- 
ter of  the  necessary  work  to  be  done  to  hold  the  claim.  This 
again  was  all  made  to  depend  on  the  local  rules  and  customs, 
and  they  were,  upon  this  subject,  very  lax  and  of  all  varieties. 
The  report  of  a  committee  made  to  the  Senate  of  the  State 
of  Nevada  on  February  23,  1866,  as  accurately  described  the 
situation  in  California  as  that  in  Nevada: 

"In  one  district  the  work  required  to  be  done  to  hold  a 
claim  is  nominal;  in  another  exorbitant;  in  another  abol- 
ished; in  another  adjourned  from  year  to  year.  A  stran- 
ger, seeking  to  ascertain  the  law,  is  surprised  to  learn 
that  there  is  no  satisfactory  public  record  to  which  he  can 
refer;  no  public  officer  to  whom  he  may  apply  who  is  under 
any  bond  or  obligation  to  furnish  him  information  or  guar- 


Historical  Sketch  of  the  Mining  Law  in  California.          57 

antee  its  authenticity.  Often  in  the  newer  districts,  he  finds 
there  is  not  the  semblance  of  a  code,  but  a  simple  resolution, 
adopting  a  code  of  some  other  district,  which  may  be  a 
hundred  miles  distant." 

PLACER  LAW  OF  JULY  9,  1870. 

Obviously,  the  law  of  1866  needed  amending  in  many 
particulars,  if  it  was  to  be  of  any  other  practical  good  than 
the  declaration  of  a  governmental  policy.  There  was  in  the 
statute  no  provision  providing  for  the  patenting  of  placer 
claims.  The  first  amendment  was  the  statute  of  July  9,  1870, 
providing  for  the  patenting  of  placer  claims.  This  amend- 
ment consisted  in  adding  six  new  sections  to  the  Act  of, 
July  26,  1866.  The  first  section  of  the  amendment  contains 
the  pith  of  the  new  Act : 

'That  claims  usually  called  'placers/  including  all  forms 
of  deposit,  excepting  veins  of  quartz,  or  other  rock  in  place, 
shall  be  subject  to  entry  and  patent  under  this  act,  under 
like  circumstances  and  conditions,  and  upon  similar  proceed- 
ings as  are  provided  for  vein  or  lode  claims;  provided,  .that 
where  the  lands  have  been  previously  surveyed  by  the  United 
States,  the  entry,  in  its  exterior  limits,  shall  conform  to  the 
legal  subdivision  of  the  public  lands,  no  further  survey  or 
plat  in  such  case  being  required,  and  the  lands  may  be  paid 
for  at  the  rate  of  two  dollars  and  fifty  cents  per  acre;  pro- 
vided, further,  that  legal  subdivisions  of  forty  acres  may  be 
subdivided  into  ten-acre  tracts ;  and  that  two  or  more  persons, 
or  association  of  persons,  having  contiguous  claims*  of  any 
size,  although  such  claims  may  be  less  than  ten  acres  each, 
may  make  joint  entrv  thereof;  and,  provided,  further,  that  no 
location  of  a  placer  claim  hereafter  made,  shall  exceed  one 
hundred  and  sixty  acres  for  any  one  person  or  association  . 
of  persons,  which  location  shall  conform  to  the  United  States 
surveys;  and  nothing  in  this  section  contained  shall* defeat 
or  impair  any  bona-fide  pre-emption  or  homestead  claim  upon 
agricultural  lands,  or  authorize  the  sale  of  the  improvements 
of  any  bona  fide  settler  to  any  purchaser." 

The  further  sections  of  the  amendment  simply  provide 
for  the  effective  carrying  out  of  these  purposes.  The  land 
is  patented  under  the  "square  location"  theory,  including 
all  contained  within  planes  drawn  vertically  through  the  ex- 
terior boundaries.  No  difficulties  of  construction  have  ever 
been  experienced  under  this  law,  or  any  of  its  amendments. 
(The  provisions  of  this  amendment  were  by  the  Federal  Act 
of  February  u,  1897,  expressly  extended  over  public  lands 


58  History  of  the  Bench  and  Bar  of  California, 

containing  petroleum  and  other  mineral  oils,  in  order  to 
overcome  the  incorrect  rulings  of  Secretary  of  the  Interior 
Hoke  Smith,  excluding  such  lands  from  its  operation). 

LAW  OF  MAY  IO,  1872. 

There  was  no  amendment  of  the  Lode  Law  of  1866  with 
reference  to  lode  claims,  however,  until  the  general  mining 
law  of  May  10,  1872,  entitled  "An  Act  to  promote  the  devel- 
opment of  the  mining  resources  of  the  United  States."  This 
statute  re-enacted,  with. slight  change,  the  provisions  con- 
cerning placer  mines.  The  idea  sleeping  in  that  inadvertent 
word  "acre"  had  borne  fruit,  however,  and  in  the  matter  of 
lode  claims  the  new  law  made  a  radical  departure.  The  new 
legislation  was  afterwards,  1878,  codified  in  sections  2318  to 
2346  inclusive,  of  the  Revised  Statutes,  and  in  that  form  it 
constitutes  the  present  mining  law  of  the  United  States  with 
reference  to  the  public  domain. 

The  salient  features  of  the  law  are  contained  in  three 
sections  and  a  portion  of  a  fourth : 

"Sec.  2319.  All  valuable  mineral  deposits  in  lands  belong- 
ing to  the  United  States,  both  surveyed  and  unsurveyed,  are 
hereby  declared  to  be  free  and  open  to  exploration  and  pur- 
chase, and  the  lands  in  which  they  are  found  to  occupation 
and  purchase,  by  citizens  of  the  United  States  and  those  who 
have  declared  their  intention  to  become  such,  under  regula- 
tions prescribed  by  law,  and  according  to  the  local  customs 
or  rules  of  miners  in  the  several  mining  districts,  so  far  as 
the  same  are  applicable  and  not  inconsistent  with  the  laws  of 
the  United  States. 

"Sec.  2320.  Mining  claims  upon  veins  or  lodes  of  quartz 
or  other  rock  in  place  bearing  gold,  silver,  cinnabar,  lead, 
tin,  copper  or  other  valuable  deposits,  heretofore  located,  shall 
be  governed  as  to  length  along  the  vein  or  lode  by  the  cus- 
toms, regulations,  and  laws  in  force  at  the  date  of  their  lo- 
cation. A  mining  claim  located  after  the  tenth  of  May,  eigh- 
teen hundred  and  seventy-two,  whether  located  by  one  or  more 
persons,  may  equal,  but  shall  not  exceed,  one  thousand  five 
hundred  feet  in  length  along  the  vein  or  lode ;  but  no  location 
of  a  mining  claim  shall  be  made  until  the  discovery  of  the 
vein  or  lode  within  the  limits  of  the  claim  located.  No  claim 
shall  extend  more  than  three  hundred  feet  on  each  side  of  the 
middle  of  the  vein  at  the  surface,  nor  shall  any  claim  be  lim- 
ited by  any  mining  regulation  to  less  than  twenty-five  feet  on 
each  side  of  the  middle  of  the  vein  at  the  surface,  except  where 
adverse  rights  existing  on  the  tenth  day  of  May,  eighteen  hun- 
dred and  seventy-two,  render  such  limitation  necessary.  The 
end  lines  of  each  claim  shall  be  parallel  to  each  other. 


Historical  Sketch  of  the  Mining  Law  in  California.          59 

"Sec.  2322.  The  locators  of  all  mining  locations  heretofore 
made  or  which  shall  hereafter  be  made,  on  any  mineral  vein, 
lode  or  ledge,  situated  on  the  public  domain,  their  heirs,  and 
assigns,  where  no  adverse  claim  exists  on  the  tenth  day  of  May, 
eighteen  hundred  and  seventy-two,  so  long  as  they  comply  with 
the  laws  of  the  United  States,  and  with  State,  territorial 
and  local  regulations  not  in  conflict  with  the  laws  of  the  United 
States  governing  their  possessory  title,  shall  have  the  exclusive 
right  of  possession  and  enjoyment  of  all  the  surface  included 
within  the  lines  of  their  locations,  and  of  all  veins,  lodes, 
and  ledges  throughout  their  entire  depth,  the  top  or  apex 
of  which  lies  inside  of  such  surface  lines  extended  downward 
vertically,  although  such  veins,  lodes,  or  ledges  may  so  far 
depart  from  a  perpendicular  in  their  course  downward  as  to 
extend  outside  the  vertical  side  lines  of  such  surface  locations. 
But  their  right  of  possession  to  such  outside  parts  of  such 
veins  or  ledges  shall  be  confined  to  such  portions  thereof  as 
lie  between  vertical  planes  drawn  downward  as  above  de- 
scribed, through  the  end  lines  of  their  locations,  so  continued 
in  their  own  direction  that  such  planes  will  intersect  such  ex- 
terior parts  of  such  veins  or  ledges.  And  nothing  in  this 
section  shall  authorize  the  locator  or  possessor  of  a  vein  or 
lode  which  extends  in  its  downward  course  beyond  the  vertical 
lines  of  his  claim  to  enter  upon  the  surface  of  a  claim  owned 
or  possessed  by  another. 

"Sep.  2324.  The  miners  of  each  mining  district  may  make 
regulations  not  in  conflict  with  the  laws  of  the  United  States, 
or  with  the  laws  of  the  State  or  territory  in  which  the  dis- 
trict is  situated,  governing  the  location,  manner  of  record- 
ing, amount  of  work  necessary  to  hold  possession  of  a  min- 
ing claim,  subject  to  the  following  requirements:  The  loca- 
tion must  be  distinctly  marked  on  the  ground  so  that  its 
boundaries  can  be  readily  traced.  All  records  of  mining 
claims  hereafter  made  shall  contain  the  name  or  names  of 
the  locators,  the  date  of  the  location,  and  such  a  description  of 
the  claim  or  claims  located  by  reference  to  some  natural  ob- 
ject or  permanent  monument  as  will  identify  the  claim.  On 
each  claim  located  after  the  tenth  day  of  May,  eighteen  hun- 
dred and  seventy-two,  and  until  a  patent  has  been  issued 
therefor,  not  less  than  one  hundred  dollars'  worth  of  labor 
shall  be  performed  or  improvements  made  during  each 
year.  .  .  .  : 

RADICAL  DEPARTURE  FROM  LAW  OF  1 866. 

The  expressions  "all  valuable  mineral  deposits  and  the 
lands  in  which  they  are  found."  in  section  2319,  and  "all  the 
surface  included  within  the  lines  of  their  locations,"  and  of 
uall  veins,  lodes,  and  ledges  throughout  their  entire  depth, 
the  top  or  apex  of  which  lies  inside  of  such  surface  lines 
extended  downward  vertically,"  in  section  2322,  disclose  the 
radical  change,  which  leaves  no  question  of  the  relationship 
between  surface  and  extent  of  lode,  but  in  express  language 


60  History  of  the  Bench  and  Bar  of  California. 

of  the  statute  rivets  them  together.  It  is  not  merely  that 
"lead,  tin  or  other  valuable  deposits"  are  added  to  the  list 
of  minerals;  that  the  maximum  length  of  vein  or  lode  is  1500 
linear  feet,  and  the  maximum  width  of  surface  300  feet  on 
each  side  of  the  middle  of  the  vein;  that  the  location  must  be 
marked  on  the  ground  so  that  it  can  be  readily  traced;  that 
it  is  prescribed  what  the  record  shall  contain  when 
recording  is  required  under  the  local  rules;  that  not  less  than 
one  hundred  dollars'  worth  of  labor  shall  be  performed,  or 
improvements  made  on  each  claim  each  year.  These 
changes  are  important,  and  cured  many  of  the  troubles 
encountered  under  the  law  of  1866,  but  their  significance 
is  not  to  be  compared  with  that  introduced  by  the  doctrine 
of  apex.  There  was  now  no  longer  any  question  of  the 
absolute  dependence  of  the  extent  of  the  lode  upon  the 
conformation  of  the  surface  lines.  The  language  is  (section 
2320) :  ''No  claim  shall  extend  more  than  three  hundred 
feet  on  each  side  of  the  center  of  the  vein,"  not  "no  inciden- 
tal surface  shall  extend,"  etc.  "The  end  lines  of  each  claim 
shall  be  parallel  to  each  other,"  and  the  courts  have  since 
decided  that  the  miner  would  lose  all  extra-lateral  rights  of 
the  lode  on  the  dip  unless  the  end  lines  are  parallel.  That 
settled  the  question  of  a  relation  between  surface  and  lode. 
There  could  be  no  mistaking  the  size  of  the  cloud  now. 

By  this  law  all  patentees  of  one-lode  under  the  law  of 
i#66  became  the  owners  of  all  other  lodes  within  the  surface 
area  of  their  claims,  with  the  same  extra-lateral  rights  as  to 
such  adjacent  lodes  as  could  have  been  acquired  under  the 
new  law.  The  danger  of  blackmail,  through  lateral  locations, 
too,  was  removed  to  a  distance  of  300  feet.  What,  however, 
were  to  be  the  rights  of  a  locator  on  a  lode  whose  width  was 
actually  more  than  the  six  hundred  feet  allowed  as  the  surface 
width  of  a  claim?  Is  the  adherence  to  the  doctrine  of  the  rela- 
tion of  surface  area  to  the  lode  to  be  so  absolute  as  to  actu- 
ally shut  off  a  portion  of  the  lode  itself,  or  in  such  case 
is  the  effect  of  the  courses  of  the  boundary  lines  to  be  limited 
simply  to  the  question  of  the  end-line  planes? 


Historical  Sketch  of  the  Mining  Law  in  California.          61 

THE  LAW  OF  THE  APEX. 

I  am  not  going  to  discuss  the  doctrine  of  the  apex  or 
attempt  to  point  out  any  great  number  of  new  and  important 
'questions  that  have  come  up,  and  must  yet  necessarily  come 
up  for  construction  under  it,  arising  out  of  the  geological 
and  other  conditions  that  will  have  to  be  met.  That  would 
mean  an  exposition  of  the  law,  instead  of  a  history  of  it. 
A  full  discussion  of  the  law  itself  will  be  found  in  Dr.  R.  W. 
Raymond's  masterly  monograph  on  "The  Law  of  the  Apex," 
and  Judge  Curtis  H.  Lindley's  conscientious  and  scholarly 
treatise  on  "The  Law  of  Mines."  I  am  trying  to  point  out 
the  historical  fact  that  there  was  a  change,  and  the  historical 
significance  of  that  change.  In  other  words,  to  obtain  any 
rights  under  the  law  of  1872,  a  prospector  must  not  simply 
find  or  attempt  to  locate  a  lode.  The  apex  of  that  lode  must 
be  within  his  surface  boundaries,  or  he  gets  no  rights  what- 
ever, and  whenever,  through  his  mistake,  no  matter  how  nat- 
ural, the  apex  crosses  any  of  the  surface  boundaries,  he  loses 
rights  that  he  would  otherwise  own.  The  position  of  the 
apex  with  reference  to  the  bounding  lines  becomes  the  touch- 
stone of  almost  all  his  rights. 

In  view  of  these  facts,  it  will  not  be  without  profit  to  note 
some  of  the  immediate  difficulties  that  were  inevitable  from 
the  working  of  the  law,  when  it  is  remembered  that  in  the 
early  workings  of  a  lode  it  is,  in  many  instances,  impossible 
at  once  to  determine  the  top  or  apex,  course  or  strike,  or 
angle  or  direction  of  the  dip,  of  the  lode.  The  apex,  as 
intended  to  be  understood  in  the  Revised  Statutes,  is, 
roughly  speaking,  the  end  or  edge  of  the  vein  on  or  nearest 
the  surface.  In  the  ideal  lode  the  locator  would  have  no 
trouble,  provided  he  get  his  apex  inside  his  boundary  lines 
and  his  side  lines  follow  the  general  course  of  the  lode.  This 
general  course,  however,  he  cannot  always  determine  ex- 
actly, and,  under  the  short  time  allowed  for  locating,  espe- 
cially if  he  must  hurry  to  head  off  other  possible  locators,  he 
must  often  take  for  granted.  The  apices  of  a  narrow  lode, 
especially  in  certain  conformations  of  country,  often  deviate 


62  History  of  the  Bench  and  Bar  of  California. 

considerably  from  a  straight  line,  and  it  is  often  easy  at  first 
to  mistake  their  course,  which  is  such  as  to  pass  beyond  the 
side  lines  of  a  claim.  We  would  then  not  have  to  look  far 
for  complications. 

SOME  PROBLEMS  OF  LAW  OF  APEX. 

Chief  Justice  W.  H.  Beatty,  than  whom  no  one  in  the 
United  States  is  more  entitled  to  be  listened  to  with  the 
highest  respect  in  questions  of  this  kind,  early  suggested  a 
number  of  such  difficulties,  many  of  which  were  not  long 
in  coming.  Writing  upon  this  point  in  his  testimony  before 
the  public  lands  commission,  November  21,  1879,  while  still 
Chief  Justice  of  Nevada,  he  said  (Report,  page  402) : 

"Mining  locators  are  granted  the  exclusive  rights  of  pos- 
session of  their  surface  claims,  and  all  veins,  etc.,  the  tops 
or  apexes  of  which  lie  inside  of  their  surface  lines  extended 
downward  vertically,  although  such  veins  in  their  downward 
course  may  extend  beyond  the  side  lines  of  the  surface 
claim.  No  locator,  however,  has  the  right  to  go  outside  of 
vertical  planes  conforming  to  his  end  lines,  notwithstanding 
the  true  dip  of  his  lode  would  carry  him  beyond.  In  every 
patent  of  mining  ground  a  right  is  reserved  to  other  locators 
to  follow  their  lodes  on  their  downward  course  into  the , 
ground  SO1  conveyed.  (Revised  Statutes,  section  2322.) 

"This  being  the  law,  the  annexed  diagram  illustrates  a 
few  of  the  numberless  difficulties  that  will  occur  in  applying 
it  to  surface  locations  that  have  not  been  made  in  exact  con- 
formiity  to  the  true  and  ultimately  ascertained  course  of  the 
lode.  The  line  O  P  represents  the  course  of  a  lode  extend- 
ing due  north  and  south,  and  is  supposed  to  be  drawn  be- 
tween its  extremities  at  the  depth  of  a  thousand  feet  from  the 
surface.  The  dip  of  the  lode  is  to  the  west,  and  the  outcrop 
appears  at  two  points,  x  and  3;.  The  top  of  the  apex  of  the 
lode  where  it  does  not  reach  the  surface  is  indicated  by  the 
dotted  line  connecting  x  a»d  y  and  extending-  beyond  in 
either  direction.  Long  before  any  better  means  exist  of 
ascertaining  the  true  course  of  the  lode  than  is  furnished  by 


Historical  Sketch  of  the  Mining  Law  in  California.          63 


Jforth. 


64  History  of  the  Bench  and  Bar  of  California. 

its  outcrop,  A  makes  a  location  at  x  marked  a  a  a  a,  and  B 
makes  a  location  at  y  marked  b  b  b  b.  In  due  time  their 
claims  are  patented.  Then  C  discovers  the  lode  at  2  and 
makes  his  location  c  c  c  c,  and  later  still  D  and  E  make 
locations  as  indicated,  north  of  A  and  south  of  B,  respect- 
ively. The  straight  dotted  lines  A  a  A  'm  B6  and  B  'b  indi- 
cate the  sections  of  the  lode  the  tops  or  apexes  of  which 
are  inside  of  the  surface  lines  of  A,  B  and  C,  respectively. 
The  dotted  lines  d  a  and  e  a  and  f  b  and  g  b  show  the  sec- 
tions of  the  lode  which  are  included  by  vertical  planes  con- 
forming to  the  end  lines  of  A  and  B  respectively. 

"Now  come  the  difficulties.  According  to  my  definition 
of  top  or  apex  of  a  lode,  and  under  what  appears  to  me  the 
only  admissible  construction  of  the  law,  C,  although  he 
locates  after  the  patent  to  A  and  B,  is  nevertheless  the  owner 
of  all  that  section  of  the  lode  included  by  the  lines  A  'm  and 
B  b,  indefinitely  prolonged,  notwithstanding  it  is  mainly 
included  from  the  very  top  in  the  prolongation  of  the  end 
lines  of  A  and  B.  C  is  the  owner  because  he  has  located  the 
top  or  apex,  and  A  and  B  are  not  owners  for  the  reason  that 
their  claims  do  not  include  the  top  or  apex  of  this  section. 
Supposing  the  lode  to  be  valuable,  it  can  readily  be  seen 
what  controversies  will  arise  as  the  progress  of  development 
begins  to  show  the  true  course  of  the  vein,  and  enlightens 
the  parties  as  to  their  boundary  rights.  Even  without  the 
intervention  of  C,  A  and  B  would  come  in  conflict  at  h  in 
regard  to  the  widening  section  f  h  e.  But  in  the  case  sup- 
posed, C  would  restrict  A  to  the  line  A'm  as  his  southern 
boundary,  and  B  to  the  line  B  b  as  his  northern  boundary. 
By  this  means  A  and  B,  being  restricted  by  their  end  lines 
from  mining  on  the  widening  section  A  a  d  and  e  b  B',  would 
be  completely  cut  off — A  at  2000  and  B  at  3000  feet  from  the 
surface.  Then  this  further  difficulty  would  arise,  that  the 
entire  top  or  apex  of  the  lode  being  included  in  the  various 
surface  locations  of  A,  B,  C,  D  and  E,  there  would  be  no 
means  under  the  law  by  which  the  widening  sections  A 
a  d  and  g  b  B'  could  be  located  or  granted.  The  only  rem- 


Historical  Sketch  of  the  Mining  Law  in  California.         65 

edy  would  be  to  cancel  the  patents  of  A  and  B,  and  allow 
them  to  readjust  their  surface  lines.  Before  this,  however, 
another  controversy  would  have  arisen  between  B  and  C,  and 
still  another  between  B  and  D,  in  regard  to  the  excessive 
claim  of  B  on  the  course  of  the.  lode,  which  it  will  be  seen 
extends  to  a  length  of  about  1600  feet,  whereas  the  law 
allows  him  at  the  utmost  but  1500  feet.  These  hints  will 
suffice  to  indicate  the  nature  of  the  task  which  the  commis- 
sion have  before  them;  and  having  no  plan  to  suggest  for 
meeting  the  difficulties  in  their  way,  I  take  my  leave  of  the 
subject." 

REASONABLE  TIME  NEEDED  FOR  MARKING. 

In  the  provision  for  the  marking  of  exterior  boundaries 
upon  the  ground,  under  the  present  provisions  of  the  law  of 
1872,  the  rights  of  the  discoverer  of  a  vein  are  not  fully  pro- 
tected. Unless  he  be  given  a  reasonable  time  to  mark  his 
boundaries  upon  the  ground,  either  under  a  State  statute,  or 
a  local  rule,  or  the  decision  of  the  Supreme  Court  of  the 
United  States,  he  may  make  many  mistakes  vital  to  his  inter- 
ests. As  a  matter  of  fact,  the  trend  of  the  California  decisions 
on  this  point  is  against  him,  though  at  the  same  time  against 
the  trend  of  the  decisions  of  almost  all  the  other  States  and 
territories  except  Oregon  (Lindley,  sections  339,  371,  372), 
and  of  the  Supreme  Court  of  the  United  States  (Erhardt  vs. 
Boaro,  113  U.  S.,  527).  What  is  a  reasonable  time?  Even 
the  decision  of  the  United  States  Supreme  Court  favoring 
a  reasonable  grant  of  time  is  for  but  a  short  grace  at  best. 
A  statute  of  this  State  was  passed  in  1897,  the  best  point  in 
which  was  that  the  discoverer  was  granted  sixty  days  after 
his  preliminary  location  in  which  to  mark  his  boundaries, 
but  it  contained  other  provisions,  which  were  considered 
cumbersome  in  practical  working,  and  under  pressure  of  the 
sentiment  in  the  mining  counties,  was  repealed  in  the  session 
of  1899.  As  the  marking  of  his  boundaries  is  a,  part  of  the 
act  of  location,  without  which  the  act  of  location  is  not 
complete,  can  the  discoverer  afford  to  wait,  lest  some  one 
else  effect  a  complete  location  before  him?  It  has  been  shown 


66  History  of  the  Bench  and  Bar  of  California. 

that  unless  he  is  given  a  reasonable  time  he  may  mistake  the 
position  of  his  apex  and  the  course  of  his  vein.  But  how 
much  would  be  a  reasonable  time  to  ascertain  the  rake  of  his 
pay  shoots,  in  order  that  he  might  slant  his  end  lines  so  as 
to  save  as  much  of  them  .as  possible?  Many  a  mine  has 
developed  a  pay-shoot  near  either  end,  and  that  was  all  there 
was  of  the  mine,  and  unless  the  discoverer  had  a  chance  to 
draw  his  end  lines  properly,  he  might  lose  the  whole  of  it 
in  a  few  hundred  .feet.  Whatever  is  wanting  in  the  law  in 
this  respect  can  be  cured  by  amendment  of  the  statute  itself. 

ABOLITION  OF  RULES,  REGULATIONS  AND  CUSTOMS  ADVOCATED. 

"The  principal,  the  vital  defect  in  the  existing  law,"  says 
Chief  Justice  Beatty  (Report,  page  396),  "is  this  permission 
to  make  local  rules.  There  are,  I  have  reason  to  believe, 
other  important  defects  in  the  law,  but  as  to  most  of  these 
there  are  more  competent  judges,  and  I  leave  it  to  them  to 
point  out  the  evil  and  suggest  a  remedy.  But  as  to-  the  prac- 
tical workings  of  the  local  rules  and  customs  of  miners,  when 
allowed  the  force  of  law,  I  have  very  decided  opinions,  which 
I  feel  that  my  means  of  knowledge  justify  me  in  stating  with 
some  confidence  in  their  correctness.  I  believe  that  the 
whole  subject  of  mining  locations  is  an  extremely  simple 
one,,  which  may  easily,  and  certainly  therefore  ought  to  be, 
regulated  by  one  general  law,  the  terms  and  existence  of 
which  shall  be  established  by  public  and  authentic  records, 
and  not  left  to  be  proved  in  every  case  by  the  oral  testimony 
of  witnesses,  or  by  writing  contained  in  loose  papers  or  mem- 
orandum-books, such  as  are  often  dignified  by  the  name  of 
'mining  records.'  I  am  convinced,  moreover,  that  the  taint- 
ing of  every  mining  title  in  the  land  at  its  very  inception 
with  the  uncertainty  which  results  from  the  actual  or  possible 
evistence  of  rules  affecting  its  validity,  perfectly  authentic  evi- 
dence of  which  is  nowhere  to  be  found,  is  a  stupendous  evil. 
Experience  has  demonstrated  that  such  an  uncertain  state 
of  the  law  is  a  prolific  source  of  litigation,  and  no  experience 
is  required  to  convince  any  man  of  ordinary  intelligence  that 


Historical  Sketch  of  the  Mining  Law  in  California.          67 

it  must  have  the  effect  of  depreciating  the  value  of  all  unpat- 
ented  claims  by  deterring  the  more  prudent  class  of  capitalists 
from  investing  in  them.  That  the  subject  is  simple  enough 
to  be  embraced  in  one  general  law  is  proved  by  the  fact  that 
the  laws  of  the  various  districts,  although  differing  in  details, 
are  in  substance  identical,  and  are  substantially  contained  in 
the  existing  acts  of  Congress. 

"What  room  is  left,  then,  for  any  local  regulations  upon 
the  only  points  that  the  miners  have  ever  assumed  to  regu- 
late? Just  this :  The  miners  may : 

"First — Restrict  themselves  to  smaller  claims  than  the 
Act  of  Congress  allows. 

"Second — Require  claims  to  be  more  thoroughly  marked 
than  would  be  absolutely  necessary  to  satisfy  the  terms  of 
the  Act.  I 

"Third — Require  more  work  than  the  law  requires. 

"Fourth — Provide  for  the  election  of  a  recorder  and  the 
recording  of  claims. 

"As  to*  the  first  three  points,  it  may  be  safely  assumed 
that  no  such  regulations  will  be  adopted  in  any  district  here- 
after organized.  Mining  districts  are  organized  by  those 
who  discover  valuable  ore  bodies  outside  of  the  limits  of 
existing  districts,  and  these  first  comers  will  be  sure  to  take 
all  the  law  allows  them  to*  take,  and  will  do  nothing  on  their 
part  to  increase  the  difficulty  of  holding  what  they  have  got. 
Later  comers,  not  being  able  to  deprive  their  predecessors 
of  rights  already  vested,  will  find  their  advantage  in  claiming 
any  new  discoveries  on  terms  as  liberal  as  others  have  en- 
joyed, and  it  will  inevitably  happen  that  the  privileges  of  the 
law  will  be  in  no  wise  abridged.  Permission  to  abridge  them 
is  therefore  wholly  superfluous. 

"In  some  of  the  older  organized  districts  the  local  rules 
do  restrict  the  size  of  claims;  but  in  no  case  within  my 
knowledge  do  they  exact  as  much  as  the  statute  in  regard  to 
marking  and  working  claims.  Under  the  regulations  restrict- 
ing the  size  of  claims  in  these  old  districts  rights  have  vested 
which  ought  to  be  protected;  but  in  amending  the  law,  with 


68  History  of  the  Bench  and  Bar  of  California. 

a  view  to  its  prospective  operation  in  old  as  well  as  new 
districts,  nothing  is  to  be  gained  by  permitting  miners  any 
longer  to  regulate  either  the  size  of  claims  or  the  mode  of 
marking  them,  or  the  amount  of  work  to  be  done  on  them . 
The  only  effect  of  such  permission  is  to  make  the  terms  of 
the  law  upon  these  important  points  everlastingly  uncertain, 
without  the  least  prospect  of  its  ever  being  improved. 

'The  fourth  point  at  present  left  open  to  regulation  by 
the  miners  remains  to  be  noticed.  All  the  district  rules  with 
which  I  am  acquainted  provide  for  mining  recorders  and  the 
recording  of  claims;  but  under  existing  legislation  such  rules 
are  worse  than  useless.  The  statute,  it  will  be  observed,  does 
not  make  any  notice  or  record  obligatory,  or  define  their 
effect.  If  the  miners  themselves  made  no  regulation  on  the 
subjecf,  claims  would  be  located  by  simple  compliance  with 
the  terms  of  the  statute,  which  contains  in  itself  ample  pro- 
vision for  every  essential  to  a  location;  i.  e.,  size  of  claim  and 
marking  and  working.  Under  the  statute  the  vein  is  located 
by  means  of  a  surface  claim,  which  not  only  can  be,  but  must 
be,  marked  on  the  ground.  When  this  is  done  all  that  the 
notice  and  record  were  ever  intended  or  expected  to  accom- 
plish is  effected  in  a  manner  far  more  satisfactory  and  com- 
plete. In  place  of  a  very  imperfect  and  often  misleading  de- 
scription of  the  claim,  there  is  a  plain  and  unambiguous  notice 
to  the  world  of  its  exact  position  and  extent.  No>  reason 
exists,  therefore,  for  retaining  in  the  law  a  provision  under 
which  it  may  be  made  obligatory,  by  local  regulations,  to  post 
and  record  a  notice  in  addition  to  the  marking  of  the  ground. 
The  monuments  on  the  ground  do  well  and  completely  what 
the  notice  and  record  do  only  imperfectly  and  in  part. 

"It  may  be  asked  why,  if  this  is  so,  do  the  miners,  who 
ought  to  understand  their  own  business,  persist  in  requiring 
a  notice  and  record.  The  answer  is,  that  marking  locations 
by  such  means  has  with  a  majority  of  miners  become  an 
inveterate  habit;  and  the  custom,  like  many  other  customs, 
outlives  the  causes  which  called  it  into  existence.  For  twenty 
years — from  1852  to  1872 — lode  claims  were  located  with- 


Historical  Sketch  of  the  Mining  Law  in  California.          69 

out  reference  to  surface  lines,  and,  as  above  explained,  their 
locality  and  extent  could  only  be  indicated  by  means  of  a 
notice.  Notice  and  record  were  therefore  an  essential  part 
of  the  system.  Now,  however,  since  the  law  has  applied  the 
system  of  surface  locations  to  lode  claims,  they  have  ceased 
to  be  of  any  importance  as  independent  and  substantial  re- 
quirements. But  the  miners  have  generally  failed  to  perceive 
that  there  has  been  any  radical  change  in  the  system  of  mak- 
ing locations.  They  cannot  divest  themselves  of  the  notion 
that  the  surface  is  still  a  mere  incident  to  the  vein,  and  that 
they  must  hold  by  means  of  their  notice  fifteen  hundred  feet 
of  the  vein,  wherever  it  is  found  to  run,  notwithstanding  their 
surface  lines,  as  marked  on  the  ground,  may  not  include  so 
much. 

"But  another  evil  remains.  In  the  nature  of  things  there 
must  always  exist  the  necessity  in  the  assertion  of  any  mining 
title  of  proving  compliance  with  the  law  prescribing  the  con- 
ditions upon  which  it  may  be  acquired;  but  there  is  no  neces- 
sity for  leaving  the  terms  and  existence  of  the  law  itself  to 
be  the  subject  of  proof  by  evidence,  the  best  of  which  is 
always  open  to  dispute.  As  long  as  there  are  local  regula- 
tions  anywhere,  and  as  long  as  there  may  be  local  regulations 
everywhere  affecting  the  validity  of  mining  titles,  no  man 
can  ever  know  the  law  of  his  title  until  the  end  of  a  trial  in 
wnTch  it  is  involved.  In  districts  where  the  rules  are  in 
writing,  where  they  have  been  some  time  in  force  and  gener- 
ally recognized  and  respected,  the  law  may  be  tolerably  well 
settled.  But  there  is  often  a  question  whether  the  rules  have 
been  regularly  adopted  or  generally  recognized  by  the  miners 
of  a  district.  There  may  be  two  rival  codes,  each  claiming 
authority  and  each  supported  by  numerous  adherents;  evi- 
dence may  be  offered  of  the  repeal  or  alteration  of  rules,  and 
this  may  be  rebutted  by  evidence  that  the  meeting  which 
undertook  to  effect  the  repeal  was  irregularly  convened  or 
was  secretly  conducted  in  some  out-of-the-way  corner,  or 
was  controlled  by  unqualified  persons;  customs  of  universal 
acceptance  may  be  proved  which  are  at  variance  with  the 


jo  History  of  the  Bench  and  Bar  of  California. 

written  rules;  the  boundaries  of  districts  may  conflict,  and, 
within  the  lines  of  conflict  it  may  be  impossible  to  determine 
which  of  two  codes  of  rules  is  in  force;  there  may  be  an 
attempt  to  create  a  new  district  within  the  limits  of  an  old 
one;  a  district  may  be  deserted  for  a.  time,  and  its  records  lost 
or  destroyed;  and  then  a  new  set  of  locators  may  reorganize 
it  and  relocate  the  claims.  This  does  not  exhaust  the  list 
of  instances  within  my  own  knowledge  in  which  it  has  been 
a  question  of  fact  for  a  jury  to  determine  what  the  law  was 
in  a  particular  district.  Other  instances  might  be  cited,  but 
I  think  enough  has  been  said  to  prove  that  local  regulations 
being  of  no  use  ought  to  be  abolished. 

"The  magnitude  of  the  evil  resulting  from  the  uncertainty 
of  mining  titles  will,  perhaps,  be  appreciated  when  I  say  that 
after  a  residence  of  seventeen  years  in  the  State  of  Nevada, 
with  the  best  opportunity  for  observing,  I  cannot  at  this  mo- 
ment recall  a  single  instance  in  which  the  owners  of  really 
valuable  mining  ground  have,  escaped  expensive  litigation, 
except  by  paying  a  heavy  blackmail."  This  defect  in  the  law, 
like  the  one  concerning  a  want  of  a  reasonable  time  to  mark 
boundaries  in  making  a  location,  can  be  cured  by  an  amend- 
ment of  the  law  itself,  and,  in  this  instance  all  that  is  neces- 
sary is  a  provision  that  all  future  occupation,  location,  or 
purchase  of  public  mineral  lands  shall  be  governed  by  laws 
of  Congress,  to<  the  exclusion  of  all  local  customs,  rules  and 
regulations  and  State  and  territorial  law. 

THE  EXTRA-LATERAL  RIGHT  AND  THE  SQUARE  LOCATION. 

A  discussion  of  any  remedy  for  the  remaining  source  of 
litigation  resulting  from  the  provisions  of  the  statute  would 
bring  to>  the  parting  of  the  ways.  Probably  any  system  that 
allows  the  miner  the  right  to  follow  his  lode  on  the  dip  outside 
vertical  planes  drawn  through  the  surface  lines  of  his  location 
must  bring  in  its  train  more  or  less  litigation.  Where  the 
miner  who  has  sunk  upon  his  lode  has  become  the  defendant 
at  the  instance  of  some  one  who<  has  located  upon  his  dip, 
he  ought  generally  without  difficulty  by  means  of  his  under- 
ground workings  to  be  able  to  prove  his  title  to  his  lode, 


Historical  Sketch  of  the  Mining  Law  in  California.          71 

though  the  expense  is  often  great  on  account  of  the  neces- 
sity of  reopening  old  works.  Where,  however,  he  has  opened 
his  mine  through  a  vertical  shaft  and  cross-cut  to  his  lode, 
he  might,  in  such  a  case,  be  compelled  to  expend  thousands 
and  thousands  of  dollars  in  work  that  is  utterly  useless  to 
him  for  all  other  purposes,  simply  to  prove  the  identity  of  the 
lode  he  is  working  beneath  his  neighbor's  surface  with  the 
one  he  located.  He  cannot  escape  the  burden  of  this  positive 
proof  for  the  judicial  construction  that  has  brought  us  the 
law  of  the  surface  has  brought  with  it  the  English  common- 
jaw  accompaniment  that  each  locator  has  the  prima  facie  right 
to  all  vertically  beneath  his  surface..  Where  another  is  min- 
ing upon  the  dip  of  his  lode,  and  he  is  seeking  affirmative 
relief  against  the  conscious  or  unconscious  trespasser,  he  may 
not  be  able  in  the  environment  of  his  own  operations  to  make 
the  satisfactory  proof,  but  will  have  to  push  on,  against  his 
other  plans  and  interests,  and  do  an  immense  amount  of 
''dead"  work  until  he  breaks  in  upon  the  trespass.  On  account 
of  peculiar  surface  boundaries  he  might  be  compelled,  on  the 
analogy  of  a  bill  of  discovery,  to>  apply  to  the  court  for  per- 
mission to  enter  the  works  of  the  trespasser  and,  at  his  own 
cost,  make  ruinously  expensive  upraises  to  the  surface,  a  per- 
mission in  many  jurisdictions  impossible  to  obtain,  in  order 
to  prove  the  identity  of  the  lode.  I  have  made  no  mention 
of  the  vexatious  delays,  delays  which  are  sometimes  used  by 
the  scoundrelly  corporation  trespassing  to  manifest  its  con- 
sciousness of  guilt  by  efforts  of  reorganization  and  the  like, 
nor  to  the  enormous  damage  often  caused  by  the  cessation  of 
operations  in  other  portions  of  the  mine  rendered  necessary 
by  the  expense  of  the  abnormal  amount  of  dead  work  useful 
alone  for  the  purposes  of  the  litigation.  The  expenses  ren- 
dered necessary  by  these  cases  and  by  those  arising  from  mis- 
takes in  the  location  of  the  apex  and  of  the  strike  of  the  lode 
are  mounting  into  millions.  Only  the  wealthy,  whether  cor- 
porations or  individuals,  can  indulge  in  this  luxury. 

These  considerations  have  brought  despair  to  many  min- 
ing men  and  doubt  a.s  to  advisability  of  any  system  providing 


72  History  of  the  Bench  and  Bar  of  California. 

for  "the  extra-lateral  right."  They  point  to  the  tranquility 
under  the  English  common  law  titles  of  the  lead  and  copper 
mines  east  of  the  Rocky  mountains  and  of  the  placer  mines 
in  our  own  State,  where  an  exact  adjustment  of  boundary 
rights  depends  simply  upon  exact  surveying.  The  increas- 
ing familiarity  of  many  of  our  prominent  mining  men  with 
the  "square  location"  system  of  Mexico  and  its  results  has 
had  much  to  do  with  fostering  a  sentiment  in  its  favor.  The 
agitation  has  already  begun  for  the  adoption  of  the  system 
of  "square  locations."  As  early  as  1880,  B.  C.  Whitman,  of 
Nevada,  and  Judge  Hallett,  of  Colorado,  openly  advocated 
it,  and  the  public  land  commission  urged  it  upon  Congress, 
while  Chief  Justice  Beatty  and  Dr.  R.  W.  Raymond,  though 
pointing  out  where  the  present  law  must  be  amended,  stren- 
uously contended  for  the  extra-lateral  right,  at  any  rate  until 
the  era  of  active  prospecting  shall  have  actually  passed  away 
(Report  public  land  commission,  of  1880). 

I  do  not  intend  to  enter  into  the  merits  of  the  controversy 
between  the  champions  of  the  extra-lateral  right  and  square 
locations.  In  an  article  upon  the  history  of  miming  law  in 
California  we  would  be  led  too  far  apace.  If,  possibly  under 
conditions  analogous  to  those  that  obtained  in  Prussia  at  the 
time,  the  extra-lateral  right  shall  ever  be  abolished,  then  its 
abolition  will  be  history, — but  not  till  then.  The  extra- 
lateral  right  is,  moreover,  a  vested  right  at  present  in  all  lode 
patents  fulfilling  the  conditions  of  the  present  law,  and  in 
all  the  numberless  locations  duly  made  under  the  lode  rules, 
customs  or  regulations.  No  amendment  can  take  that 
vested  right  away.  In  all  lode  mines  that  at  present  exist 
where  compliance  has  been  had  with  the  condition  of  sub- 
stantial parallelism  of  end  lines,  the  extra-lateral  right  is 
indefeasible,  unless  the  abandonment  of  the  possessory  own- 
ership by  the  owner  shall  throw  the  mine  itself  back  into  the 
public  domain.  Any  legislation  on  the  subject,  could  at  most, 
then,  only  affect  future  locations. 

After  all,  no*  matter  how  honestly  the  advocates  of  the 
two  systems  contend,  the  conclusions  reached  depend  largely 


Historical  Sketch  of  the  Mining  Law  in  California.          73 

upon  the  point  of  view.  The  large  mine  operator,  who  buys 
and  opens,  but  who  does  not  discover  or  locate  mines,  upon 
whose  shoulders  falls  the  burden  of  the  costs  of  litigation, — 
he,  with  his  lawyers  and  his  surveyors  and  his  experts,  usu- 
ally leans  toward  the  "square  location."  The  prospector 
and  the  discoverer  feels  in  his  every  fibre,  no  matter  what 
fictitious  sacredness  judicial  construction  or  the  statute  may 
have  thrown  about  the  idea  of  the  surface,  that  the  lode 
itself  is  the  only  real  property,  as  it  is  the  only  thing  he  has 
been  hunting,  and  when  he  finds  the  lode  his  desire  "to  stay 
with  it  till  it  reaches  hell"  is  a  passion  that  cannot  be  under- 
stood by  one  who  has  never  owned  a  lode  mine  and  worked 
in  it,  or  who  has  never  lived  in  a  mining  community.  The 
discoverer  is  not  of  the  class  that  has  usually  had  to  bear 
the  costs  of  mighty  law-suits,  and  therefore  he  loses  no  sleep 
over  the  possible  litigation.  And,  even  if  he  does  take  the 
chance  of  losing  the  mine,  he  is  willing  to  do  so  with  the 
same  cheerfulness  with  which  he  spent  the  greater  part  of 
his  life  on  the  chance  of  finding  it.  As  long  as  the  la\v  rec- 
ognizes his  right,  he  is  willing -to  take  his  chances  of  being 
able  to  hold  on  to  the  lode.  He  has  long  learned  to  look 
upon  mining  with  the  same  game  philosophy  with  which 
John  Oakhurst  looked  upon  life,  as  at  best  an  uncertain 
game,  and  to  "recognize  the  usual  percentage  in  favor  of 
the  dealer." 

SUGGESTED   AMENDMENTS   OF   LAW   OF 

The  act  of  1872,  with  further  congressional  amendment 
putting  all  matters  concerning  location  in  the  terms  of  the 
act  itself,  abolishing  all  local  rules,  regulations  and  customs 
and  superseding  all  State  and  territorial  enactments,  arrang- 
ing for  the  discoverer  to  have  a  reasonably  liberal  time  within 
which  to  mark  his  boundaries  before  he  shall  be  bound  by 
them,  and  regulating  effectively  the  performance  of  the  work 
necessary  to  hold  the  possessory  right  to  the  claim,  will  be 
immensely  improved.  The  mistakes  incident  to  hurried  loca- 
tion and  consequent  ignorance  of  the  details  to  give  it  effec- 


74  History  of  the  Bench  and  Bar  of  California. 

tiveness  will  be  reduced  to  a  minimum.  The  law  has  already 
stood  many  a  severe  geological  test.  It  has  had  to  undergo 
the  test  of  the  flat  wavy  veins  of  the  neighborhood  of  Nevada 
City.  It  may  have  to  deal  with  lodes  like  the  Royal  Consol- 
idated in  Calaveras  County,  where  one  can  walk  down  the 
shaft,  or  with  the  abnormal  width  of  the  mother  lode  in  some 
portions  of  Amador  County.  The  law  that  could  stand 
Carson  City-North  Star,  South  Scotia-New  Idea,  Wyoming- 
Champion,  Providence-Champion,  Argonaut- Kennedy,  and 
many  another  problem  already  solved,  will  have  no  trouble  in 
California.  The  mountains  and  gulches  of  California  will 
probably  never  try  it  with  anything  so  hard  as  Leadville. 

CERTAIN   STATE   MINING  LEGISLATION. 

It  would  be  manifestly  beyond  the  scope  of  an  article  of 
this  kind  to  stop  to  point  out  all  the  different  laws  that  were 
passed  and  repealed  in  California  with  reference  to  the  exclu- 
sion of  Chinese  from  the  mines,  and  the  attempts  to  levy  and 
collect  a  Foreigners'  Tax.  There  would  be  no  use  in  relating 
the  history  of  the  enactment  of  any  acts,  whether  in  general 
or  codified  form,  providing  under  the  law  of  eminent  domain 
for  the  condemnation  of  sites  for  tunnels,  ditches,  flumes, 
pipes,  and  dumping  places  for  working  mines,  or  for  outlets, 
natural  or  otherwise,  for  the  flow,  deposit,  or  conduct  of  tail- 
ings or  refuse  matter  from  the  mines,  for  the  reason  that  in 
all  instances  where  any  attempt  has  been  made  under  the  pro- 
visions of  the  act,  the  Supreme  Court  of  this  State  has  foiled 
the  attempt  by  holding  that  mining  is  not  a  public  use.  The 
act  establishing  a  system  of  mine  bell  signals  introduced  by 
Senator  Voorheis,  of  Amador  and  Calaveras  Counties,  and 
approved  March  8,  1893,  cannot  be  said  to  belong  to  the 
law  of  mining  in  California,  in  the  sense  in  which  I  have  been 
discussing  that  subject.  It  is  significant,  however,  as  indi- 
cating the  immense  strides  in  the  industry  of  lode  mining, 
and  the  large  scale  of  lode  mining  operations  as  distinguished 
from  its  small  beginnings,  that  such  a  system  of  bell  signals 


Historical  Sketch  of  the  Mining  Law  in  California.          75 

was  found  necessary  and  convenient.  Likewise,  the  act  for 
the  protection  of  stockholders  in  mining  companies,  approved 
April  23,  1880,  and  its  amendment,  more  properly  belongs  to 
the  law  of  corporations  than  that  of  mining.  The  peculiar 
associations,  too,  known  as  mining  partnerships,  which  arise 
where  several  owners  of  a  mine  engage  in  the  actual  working 
of  it,  belong  properly  to  a  treatise  on  partnership,  though 
their  law  of  today  is  but  the  statutory  enactment  of  a  distinct- 
ive California  common  law,  which,  though  in  many  respects 
similar  to  the  "cost-book  system"  of  Cornwall  and  Devon, 
blossomed  out  of  the  tenderest  relationship  of  the  days  of 
'49,  the  days  of  Tennessee  and  his  "pardner."  They  spread 
out  int  o  all  the  states  and  territories,  where  went  the  Califor- 
nia law  of  mining  properly  so-called,  were  early  crystallized 
in  decisions  of  the  courts,  and  enacted  into  statutes,  which 
were,  with  all  their  features  distinctive  from,  ordinary  part- 
nership, re-enacted  into  the  Civil  Code,  Sections  2511-2520, 
in  1872. 

HYDRAULIC  MINING  AND  CALIFORNIA  DEBRIS  COMMISSION  ACT. 

One  of  the  most  interesting  phases  of  the  mining  law  in 
California  is  the  federal  statute  creating  the  California  Debris 
Commission,  following  the  closing  down  of  the  hydraulic 
mines  in  the  Sacramento  and  San  Joaquin  watershed  as  a 
result  of  the  federal  injunction  in  the  test  case  of  Woodruff 
vs.  The  North  Bloomfield.  The  act  was  the  work  of  Mr. 
Caminetti,  of  Jackson,  then  congressman  from  the  Second 
District,  and  deserves  a  more  detailed  notice  than  I  shall  be 
able  to  give  it  in  this  article,  as  it  is  a  unique  example  of 
governmental  intervention.  The  government  had  sold  the 
agriculturalists  in  the  valley  their  land  and  the  miners  in  the 
mountains  their  placer  claims,  had  given  each  patents  with 
equal  covenants  "to  have  and  to  hold,"  and  had  collected 
from  each  side  the  fees  for  the  land  at  the  land  office  with 
equal  urbanity.  It  had  been  decided  in  the  North  Bloom- 
field  case  that  the  debris  from  that  mine,  the  result  of  mining 
by  the  well-known  hydraulic  process,  was  injuring  the  lands 


76  History  of  the  Bench  and  Bar  of  California. 

adjacent  to  the  navigable  streams  below.  The  magnitude 
of  the  extent  of  hydraulic  mining  had  been  its  undoing.  The 
choking  up  of  the  overtaxed  channels  of  the  rivers,  the  cov- 
ering up  of  valuable  adjacent  lands,  and  the  injury  to  navi- 
gation brought  all  parties  down  upon  the  offending  industry. 
Private  individuals  invoked  the  doctrine  "  ut  non  laedas," 
the  State  protested  against  interference  with  its  water  high- 
ways, and  the  federal  government,  despite  the  covenant  in 
the  deed,  objected  to  the  obstruction  to  navigation.  The 
bitter  feeling  engendered  between  the  interests  injured  and 
the  industry  was  so  great  that  for  some  years  no  effort  was 
made  towards  any  rehabilitation  of  hydraulic  mining. 

In  the  decision  of  the  Woodruff  vs.  North  Bloomfielcl 
case,  brought  by  an  individual,  and  the  People  vs.  Gold  Run 
case,  brought  by  the  State,  the  hydraulic  process  in  and  of 
itself  had  not  been  declared  unlawful,  but  hydraulic  mining 
as  theretofore  conducted  where  it  contributed  or  threatened 
to  contribute  in  a  material  degree  to  the  filling  up  of  river 
channels,  injuring  navigation,  or  covering  the  lands  adjacent 
to  the  navigable  streams  with  debris,  was  declared  a  public 
nuisance  and  prohibited.  Judge  Sawyer,  who  decided  the 
Woodruff-Bloomfield  case,  realized  the  awful  damage  to  en- 
tire sections  of  the  State  by  the  closing  down  of  these  mines, 
and  left  a  fair  opening,  making  certain  suggestions  of  pos- 
sible conditions  under  which  the  injunction  might  be  dis- 
solved. The  North  Bloomfield  Company  constructed  the 
suggested  impounding  works,  and  the  United  States  then 
brought  its  action  for  an  injunction  against  the  North  Bloom- 
field  Company.  The  injunction  was  denied,  the  Court  hold- 
ing that  by  reason  of  the  impounding  works  constructed  the 
light  matter  floating-  over  the  dam  was  harmless,  that  danger 
to  be  apprehended  from  the  operation  of  the  North  Bloom- 
field  mine,  with  its  impounding  reservoirs  as  constructed  and 
used  and  intended  to  be  used,  was  too  remote  to  justify  the 
Court  in  issuing  an  injunction. 

Thereafter,   the   California  Debris   Commission  Act  was 
passed.      The   government   could   not   afford   to   admit   any 


Historical  Sketch  of  the  Mining  Law  in  California.          77 

moral  responsibility,  and  it  did  not  desire  avowedly  to  pass 
any  legislation  in  aid  of  any  special  industry,  but  it  could,  on 
the  theory  of  aiding  navigation,  carry  out  a  certain  patrol 
of  the  navigable  streams.  The  Act  was  approved  March  i, 
1893,  and  provides  for  the  creation  of  a  commission  of  three 
members,  to*  be  known  as  the  California  Debris  Commission, 
and  to  be  selected  by  the  President,  by  and  with  the  advice 
and  consent  of  the  senate,  from  officers  of  the  Corps  of 
United  States  Army  engineers,  which  commission  has  its 
authority  and  exercises  its  powers  under  the  supervision  of 
the  chief  of  engineers  and  direction  of  the  Secretary  of  War. 
The  jurisdiction  of  the  commission  with  reference  to  hydraulic 
mining  extended  to  all  such  mining  in  the  territory  drained 
by  the  Sacramento  and  San  Joaquin  Rivers.  Hydraulic  min- 
ing, as  defined  in  section  eight  thereof,  directly  or  indirectly 
injuring  the  navigability  of  said  river  systems  carried  on  in 
said  territory  other  than  as  permitted  under  the  provisions 
of  this  act,  was  prohibited  and  declared  unlawful. 

It  was  made  the  duty  of  the  commission  to  mature  and 
adopt  such  plans  as  would  improve  the  navigability  of  all  the 
rivers  comprising  the  system,  deepen  their  channels,  and  pro- 
tect their  banks,  with  a  view  of  making  the  same  effective 
as  against  the  encroachment  of,  and  damage  from,  debris 
resulting  from  mining  operations,  natural  erosion,  or  other 
causes,  and  permitting  mining  by  the  hydraulic  process  to  be 
carried  on,  provided  the  same  might  be  accomplished  without 
injury  to  the  navigability  of  the  rivers,  or  to  the  lands  ad- 
jacent thereto.  The  commission  was  also  empowered  to  ex- 
amine, survey  and  determine  the  utility  and  practicability  of 
storage  sites  for  the  storage  of  debris,  with  a  view  to  the 
ultimate  construction  of  impounding  dams  and  reservoirs, 
and  permitting  hydraulic  mining  to  be  carried  on  behind 
them.  It  prescribed  a  complete  system  for  application  of 
those  desiring  to  submit  themselves  to  the  jursdiction  of 
the  commission,  of  the  necessary  notices,  publication,  exami- 
nations, hearings,  etc.  The  works  are  to  be  constructed 
under  the  direct  supervison  of  the  commission,  but  at  the  ex- 


78  History  of  the  Bench  and  Bar  of  California. 

pense  of  the  parties,  and  the  permit  to  commence  mailing 
is  not  issued  until  after  inspection  and  approval  of  the  com- 
pleted work.  This  permission  may,  for  cause,  be  revoked, 
or  its  terms  modified  from  time  to  time.  It  will  be  noticed 
how  absolutely  hydraulic  mining  is  placed  under  the  thumb 
of  the  commission.  The  terms  of  the  act  contain,  moreover, 
the  drastic  provision  that  the  petition  to*  the  commission  to 
be  permitted  to  mine 

"shall  be  accompanied  by  an  instrument  duly  executed  and 
acknowledged,  as  required  by  the  law  of  the  said  State, 
whereby  the  owner  or  owners  of  such  mine  or  mines  sur- 
render to  the  United  States  the  right  and  privilege  to  regu- 
late by  law,  as  provided  in  this  act,  or  any  law  that  may  here- 
after be  enacted,  or  by  such  rules  and  regulations  as  may  be 
prescribed  by  virtue  thereof,  the  manner  and  method  in  which 
the  debris  resulting  from  the  working  of  said  mine  or  mines 
shall  be  restrained,  and  what  amount  shall  be  produced  there- 
from," 

Under  the  provisions  of  this  act  a  number  of  permits  have 
been  granted  and  a  number  of  mines  have  started  again.  The 
courts  are  being  again  appealed  to,  however,  for  injunctions; 
the  Red  Dog  hydraulic  mine  has  already  been  closed  down 
by  injunction  from  the  Superior  Court  of  Sutter  County;  the 
Polar  Star  mine  is  closed  clown  under  a  temporary  restrain- 
ing order  from  the  same  court,  and  suits  have  been  begun 
and  are  threatened  against  many  other  mines  operating  under 
the  jurisdiction  of  the  commission. 

While  this  act  was  pending  in  congress  there  was  being 
crowded  through  the  legislature  of  California  an  act  intro- 
duced by  Attorney  General  Tirey  L.  Ford,  then  State  sen- 
ator from  Sierra,  Plumas  and  Nevada  counties,  which,  as 
Sections  1424  and  1425  of  the  Civil  Code  was  approved 
March  24,  1893,  the  terms  of  which  are  as  follows: 

"1424.  The  business  of  hydraulic  mining  may  be  carried 
on  within  the  State  of  California  wherever  and  whenever  the 
same  can  be  carried  on  without  material  injury  to  the  navigable 
streams,  or  the  lands  adjacent  .thereto. 

"1425.  Hydraulic  mining,  within  the  meaning  of  this  title, 
is  mining  by  means  of  the  application  of  water,  under  pressure, 
through  a  nozzle,  against  a  natural  bank." 

Section  1424,  it  will  be  seen,  is  in  direct  conflict  with 
the  provisions  of  the  Debris  Commission  Act.  It  is  also  in 


Historical  Sketch  of  the  Mining  Law  in  California.          79 

conflict  with  the  judicial  interpretation  given  to  the  provis- 
ions of  that  act,  and  is,  therefore,  probably  nugatory  in  the 
Sacramento  and  San  Joaquin  watershed,  though  in  full  force 
and  effect  in  the  remainder  of  the  State.  Section  1425  will 
be  of  value  as  defining  the  sense  in  which  the  words  "hydrau- 
lic mining"  were  used  in  California  prior  to  its  enactment 
only  in  case  it  is  really  the  codification  of  a  definition  actually 
accepted  at  the  time  and  before  the  federal  act  was  passed. 

The  North  Bloomfield  Company,  as  has  been  seen,  had 
constructed  its  restraining  works  before  the  creation  of  the 
commission  and  those  restraining  works  had  been  decided 
in  a  case  by  the  United  States  against  the  Company  in  the 
United  States  Circuit  Court  to  be  sufficient,  and  application  of 
the  government  for  an  injunction  denied.  It,  therefore,  did  not 
submit  itself  to  the  jurisdiction  of  the  commission.  Several 
years  after  the  act  was  passed  the  government  again  brought 
an  action  against  the  North  Bloomfield  Company,  adding 
to  the  old  allegations  supplemental  averments  of  the  passage 
of  the  Debris  Commission  Act,  and  the  failure  of  the  com- 
pany to  submit  itself  to*  the  jurisdiction  of  the  commission 
and  secure  from  it  a  permit  to  conduct  its  mining  operations 
behind  its  dam.  While  conceding  that  the  mine  was  being 
operated  without  injury  to  the  navigable  streams,  as  found 
at  the  former  trial,  Judge  Ross  nevertheless  granted  the  in- 
junction, holding  that  until  the  debris  commission  appointed 
under  the  act  should  find  that  such  mining  can  be  carried  on 
without  causing  the  prohibited  injury,  all  hydraulic  mining 
within  the  territory  drained  by  the  Sacramento  and  San  Joa- 
quin River  systems,  is  unlawful.  This  decision  was  after- 
wards affirmed  on  appeal  to  the  Circuit  Court  of  Appeals. 
Here  was  the  constitutionality  of  the  Act  as  a  quasi-police 
regulation  upheld  in  favor  of  the  government  and  against 
a  hydraulic  mine.  There  is  no  doubt,  moreover,  of  the  con- 
stitutional right  of  the  government  to  appropriate  money  or 
build  dams  to  keep  debris  out  of  its  navigable  streams. 

Such  a  test  of  the  constitutionality  of  the  measure  on  the 
point  indicated  is,  however,  of  no  benefit  to  the  miners.  The 


8o  History  of  the  Bench  and  Bar  of  California. 

single  comforting  obiter  dictum  in  the  whole  decision  of 
Judge  Ross  is  the  following:  "The  power  to  absolutely 
prevent  the  use  of  such  waters  for  the  objectionable  purposes 
necessarily  includes  the  power  to  prescribe  the  terms  and 
conditions  upon  which  they  may  be  so  used."  (81  Fed.  Rep. 
254.)  Taken  in  connection  with  the  facts  of  the  case,  how- 
ever, this  language  would  simply  mean :  "The  power  to  ab- 
solutely prevent  the  use  of  such  waters  for  the  objectionable 
purposes  necessarily  includes  the  power  to  prescribe  the 
terms  and  conditions  without  which  they  mav  not  be  so  used." 

P*"^~ 

The  decision  simply  decides  the  constitutional  right  of  the 
government  to  protect  the  navigability  of  the  streams  by 
closing  down,  through  legislation,  any  hydraulic  mine  in 
these  watersheds  which  has  not  submitted  itself  to  the  juris- 
diction of  the  commission.  The  miner  will  not  be  heard 
to  say  in  resistance  that  he  is  being  deprived  of  his  property 
without  due  process  of  law.  That  is  settled,  but  that  is  all 
that  is  settled,  by  the  judicial  construction  thus  far  given  to 
the  Act.  Is  the  working  of  the  Act  reciprocal?  The  miner 
is  bound  with  hooks  of  steel;  but  how  about  the  farmer — is 
he  likewise  bound?  Is  the  State  of  California  bound?  For 
the  purposes  of  any  miner  who  desires  to  take  his  chances 
under  the  act,  the  test  of  its  constitutionality  should  be  made 
in  some  case  brought  against  a  company  or  person  operat- 
ing under  a  duly  obtained  permit  from  the  commission,  and 
not  in  a  case  against  a  company  or  person  not  operating 
under  such  permit.  Moreover,  the  test  should  be  made  in 
defending  a  case  where  a  farmer  attacks  the  Act  on  the 
ground  that  some  constitutional  right  of  his  is  being 
abridged,  or  where  the  people  of  the  State  of  California  (on 
relation  of  the  Attorney-General)  attack  it  on  the  ground 
that  some  of  their  constitutional  rights  are  being  abridged, 
by  the  action  of  a  miner  operating  under  a  duly  obtained  per- 
mit from  the  commission.  No  other  test  will  settle  the  point. 
The  permit  of  the  commission  is  already  a  finality  as  far  as 
the  miner  is  concerned.  Is  it  a  finality  as  far  as  the  farmer 
and  the  State  are  -concerned?  To  settle  this  point,  the  ques- 


Historical  Sketch  of  the  Mining  Law  in  California.         8 1 

tions  to  be  presented  by  a  farmer  or  by  the  State,  under  the 
two  sets  of  cases  above  set  forth,  are  the  following :  Is,  or 
is  not,  the  act  contrary  to  the  provisions  of  the  fifth  amend- 
ment to  the  Constitution  of  the  United  States?  Does,  or 
does  not,  the  act,  directly  or  indirectly,  deprive  any  person 
of  property  without  due  process  of  law?  Is  the  State  de- 
prived by  the  Act  of  any  right  guaranteed  to  it  in  the  Con- 
stitution of  the  United  States,  or  therein  implied?  It  is  con- 
tended in  behalf  of  the  miner  that  neither  the  farmer  nor  the 
State  is  deprived  by  the  Act  of  any  property  or  right  with- 
out due  process  of  law;  that,  inasmuch  as  the  commission  has 
complete  jurisdiction  to  modify  or  revoke  its  permit  at  any 
time,  the  farmer  and  the  State  are  not  necessarily  deprived 
by  the  Act  of  any  "day  in  court"  either  may  desire.  Ob- 
viously, unless  the  permit  of  the  commission  contemplated  by 
the  Act  is  a  finality  as  far  as  the  courts  are  concerned,  the 
statute  is  an  injury  instead  of  a  boon  to  the  miner.  If,  how- 
ever, the  permit  is  such  a  finality,  and  the  Act  is  declared 
constitutional  in  such  a  case  as  the  above,  then  the  farmer 
and  the  State  will,  instead  of  going  intO'  the  courts,  have  to 
submit  to  the  jurisdiction  of  the  commission  equally  with 
the  miner,  and  the  present  threatened  interminable  litigation 
would  be  at  an  end.  The  sooner  the  question  is  conclusively 
settled  the  better,  if  there  is  to<  be  any  practical  resumption 
of  hydraulic  mining  in  the  basins  of  the  Sacramento  and 
San  Joaquin  Rivers. 

In  the  basins  of  the  Klamath  and  the  Trinity,  on  the 
other  hand,  hvdraulic  mining  is  happily  free.  Nature,  that 
has  handicapped  the  industry  in  one  section  of  the  State,  has 
favored  it  in  another.  These  rivers  are  non-navigable,  and 
their  banks  for  the  most  part  precipitous.  In  these  river 
basins  the  only  foe  the  industry  has  to  contend  with  is  the 
occasional  blackmailer.  The  courts  have,  however,  miti- 
gated the  power  of  these  people  for  evil  in  two  well-consid- 
ered decided  cases.  The  rule  of  the  decisions  with  reference 
to  hydraulic  mining  or  navigable  streams  is  separated 
by  a  district  cleavage  from  the  rule  with  reference  to  non- 


82  History  of  the  Bench  and  Bar  of  California. 

navigable  running  streams.  Judge  Field,  always  the  friend 
of  mining,  in  a  decision  of  the  Supreme  Court  of  the 
United  States  (Atchison  vs.  Peterson,  20  Wallace,  507),  up- 
held the  refusal  of  the  lower  court  (in  Montana)  to  issue  a 
writ  of  injunction  where  a  prior  appropriator  of  water  claimed 
his  water  was  injured  by  tailings  from  a  hydraulic  mine, 
pointed  out  the  extreme  reluctance  that  should  guide  courts 
in  the  issuance  of  this  writ,  and  held  that  the  question 
whether,  upon  a  petition  or  bill,  asserting  the  prior  rights  of 
the  first  appropriator  have  been  invaded,  a  court  of  equity 
will  interfere  to  restrain  the  acts  of  the  party  complained  of, 
will  depend  on  the  character  and  extent  of  the  injury  alleged, 
whether  it  be  irremediable  in  its  nature,  whether  an  action  at 
law  would  afford  adequate  remedy,  whether  the  parties  are 
able  to  respond  for  the  damages  resulting  from  the  injury,  and 
other  considerations. 

Nor  is  the  adjoining  mine  owner  permitted  to  become  a 
dog  in  the  manger.  The  Supreme  Court  of  this  State  on 
March  18,  1896,  rendering  its  decision  in  the  case  of  Jacob 
vs.  Day,  (in  Cal.  571),  held  that  the  use  of  water  for  the 
purpose  of  carrying  off  the  tailings,  and  the  construction  of 
a  ditch  to  aid  therein,  are  as  essential  to  the  successful  conduct 
of  hydraulic  mining,  as  is  the  first  use  to  which  the  water 
is  put  in  washing  down  the  natural  bank;  and  that  the  title 
to  an  adjoining  mine  passes  under  patent  from  the  United 
States  subject  to  the  easement  of  the  right  of  way  for  a  ditch 
used,  in  accordance  with  focal  mining  customs,  as  a  tailrace 
from  a  hydraulic  mine  across  the  patented  ground  prior  to 
the  patent  under  the  provisions  of  sections  2339  and  2340 
of  the  Revised  Statutes  of  the  United  States.  That  the  ease- 
ment for  the  tailrace  of  a  hydraulic  mine  is  not  an  easement 
for  drainage  within  the  meaning  of  section  2338  of  the  Re- 
vised Statutes  of  the  United  States,  excluding  easements  for 
drainage  from  the  purview  of  the  act  of  Congress;  but  it  is 
a  right  to  the  use  of  water  for  mining  purposes  and  for  the 
construction  of  ditches  for  such  purposes  within  the  mean- 
ing of  sections  2339  and  2340  of  said  statutes.  That  an  ease- 


Historical  Sketch  of  the  Mining  Law  in  California.          83 

ment  must  be  used  in  such  a  manner  as  to  impose  as  slight 
a  burden  and  damage  as  possible;  but  where  a  tailrace  of  a 
hydraulic  mine  is  an  easement  upon  patented  mining  ground, 
the  fact  that  the  running  of  tailings  through  the  tailrace  in 
the  ordinary  course  of  mining  caused  a  small  portion  of  the 
ground  alongside  of  the  ditch  to  cave  down  and  wash  away, 
and  caused  the  tailrace  to  cut  farther  into  the  bedrock,  but 
without  material  and  appreciable  injury  to  the  plaintiff,  does 
not  entitle  the  owner  of  the  patented  ground  to  an  injunc- 
tion. 

While  the.  law  of  mining  has  through  enactment  and  de- 
cision gradually  become  settled,  until  there  remains  but  com- 
paratively few  doubtful  points  to  be  still  construed,  and  but 
few  amendments  to  better  the  legislation  we  already  have, 
mining  itself  in  the  great  ledges  of  California  is  little  more 
than  begun.  It  is  true  that,  except  where  some  ancient 
river  channel  is  occasionally  found,  the  days  of  the  plac- 
ers are  passing  with  the  romance  and  the  glamour  of 
the  Pioneers.  Quartz  mining  is  destined,  however,  to 
be  a  permanent  industry  of  the  State.  New  men, 
new  methods,  and  increased  facilities  for  operations  have 
made  of  it  a  recognized  business  instead  of  a  gamble.  The 
history  of  the  law  of  mining  in  the  future  will  more  and  more 
partake  of  the  general  features  incident  to  litigation  growing 
out  of  other  industries,  and  the  element  of  uncertainty  will 
be  confined  more  and  more  to  that  element  of  uncertainty 
found  in  all  litigation;  that  which  is  produced  by  the  shifting 
sands  of  evidence, 

-JOHN  F.  DAVIS. 

Jackson,  Cal.,  Dec.  9,  1901. 


14  DAY  USE 

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